MadProfessah Voting Guide: June 2022 Los Angeles and California Primary Elections

Here are MadProfessah's positions on how I will be voting have voted in the June 7 2022 California Primary 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 Primary Ballot is quite long. Here are my endorsements (how I am voting) 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.

Information about judges of the Superior Court were informed by these two documents by two informed insiders (a former Superior Court judge and Someone who works in the DA's office).

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 

QUEER QUOTE: Paul Feinman Is 1st Openly LGBT Member of New York's Highest Court

Paul Feinman joins an unfortunately small list of openly LGBT people who are members of their state's highest court. Feinman was appointed by Governor Andrew Cuomo to the New York Court of Appeals in June 2017.

Today's Queer Quote is from Brad Hoylman:

Senator Brad Hoylman, one of five openly gay members of New York's State Legislature who urged the governor to appoint an LGBT person to the Court of Appeals, called the confirmation "an important perspective that has been missing on the court." 

"It is a watershed moment for the LGBT rights in the state of New York," said Hoylman. "It comes at a time when gay rights are under assault from Washington, DC and LGBT people and their families feel under siege." 

Two of the seven candidates recommended to take the open seat were openly gay. But it was 57-year-old Feinman whose seat was confirmed amid Pride Month celebrations of the progress the LGBT community has made. He is the first openly LGBT justice to be confirmed in the Court of Appeal's 170-year history.

Congratulations to Paul Feinman!

Marriage Equality Back On In Arkansas, Off (For Now) In Idaho

Although judges have struck down the laws banning marriage equality in Idaho and Arkansas in the last week, the status of marriage equality in each jurisdiction is in different states of flux in these two states.

The 9th U.S. Circuit has issued a stay in the case of Latta v. Otter which will prevent the judge's order from going into effect on Friday until the 9th Circuit formally considers the request for a more permanent stay tha would last the duration of the period it takes to decide the appeal from the state of the ruling allowing marriage equality to go into effect in Idaho.

In Arkansas, same-sex couples have been able to get married since last Saturday but after the Arkansas State Supreme Court refused to issue a stay to stop those marriages but noted that the original order did not invalidate the state law which prohibited clerks from issuing marriage licenses to same-sex couples marriages had stopped in the state. The judge responded by issuing a new order today making it clear that any prohibition on issuing marriage licenses to same-sex couples is null and void, resulting in Arkansas's largest county (Pulaski) to resume issuing marriage licenses to same-sex couples.

Exciting times in deed!

UPDATE: Judge in PA Stops County From Issuing Marriage Licences

If you recall the marriage equality situation in Pennsylvania when last we blogged about it, there was a single county (Montgomery) that was issuing marriage licenses to same-sex couples because the Register of Wills Bruce Hanes had decided the state marriage law was unconstitutional.

A number of same-sex couples received marriage licenses and got married. The Attorney General of Pennsylvania also believes the Keystone State's marriage law is unconstitutional and refused to defend it.

However Pennsylvania's Republican Governor, Tom Corbett, stepped in to defend it himself in his capacity as the chief executive of the state, hiring a private law firm to do so (at the cost of $400 per hour).

It turns out that yesterday a judge finally ordered Hanes to stop issuing marriage licenses to same sex couples, which he says he has done 146 times. It's not clear what the status of the marriages that were entered into using those licenses. However, typically in this situation, even when the marriage statute is ruled unconstitutional (California) those marriages from improvidently issued licenses are often declared null and void by the Court (California, Oregon and Colorado).

You may recall that a similar thing is happening in New Mexico, but in the other direction. Judges are ordering county clerks to issue marriage licenses and the state Supreme Court has finally stepped in to say it will hear oral arguments in the case in late October.

CA Gov Appoints 1st Openly Gay Appellate Judge

California Governor Jerry Brown has appointed a former advisor on legal affairs to a seat on the 1st District Court of Appeals, 4th division. If confirmed by the Council on Judicial Appointments, James Humes will be the first openly gay person on the appellate bench in California.

From the official announcement from the Governor:

Humes, 53, of San Francisco, has served as executive secretary for legal affairs, administration and policy at the Office of Governor Edmund G. Brown Jr. since 2011. He was chief deputy attorney general at the Office of Attorney General Edmund G. Brown Jr. from 2007 to 2011. Humes served in multiple positions at the California Department of Justice from 1993 to 2007, including chief assistant of the civil division and senior assistant attorney general of the health, education and welfare section. He served in the Colorado Attorney General’s Office from 1984 to 1986 and again from 1987 to 1993. Humes was an associate at Banta Hoyt Banta Greene Hannen and Everall PC from 1986 to 1987 and at Jay Stuart Radetsky PC from 1983 to 1984. He earned a Juris Doctorate degree from the University of Denver, a Master of Social Science degree from the University of Colorado and a Bachelor of Arts degree from Illinois State University.

Gov. Brown also appointed openly lesbian Paula Rosenstein to a seat on the San Diego Superior Court.

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!

Black Gay GOP NJ High Court Nominee Rejected

Tony Kurdzuk/The Star-Ledger 

As expected, Republican Governor Chris Christie had his cynical nomination of the openly gay, African American, Republican mayor of Chatham, New Jersey Bruce Harris to the State Supreme Court rejected by a Democratic majority State Senate committee.

The New Jersey Star Ledger reports:

Dealing Gov. Chris Christie his second bitter defeat over a high-ranking judicial appointment, the Senate Judiciary Committee today rejected the nomination of Mayor Bruce Harris of Chatham Borough to the state Supreme Court.

The Democrat-controlled committee voted 7 to 6 to turn away the 61-year-old Harris, the first openly gay and third African-American to be nominated to the state's highest court. State Sen. Brian Stack (D-Hudson), an ally of the Republican governor, was the only Democrat to vote in support of the nomination.

[..]

While Democrats hammered away at Harris for his lack of courtroom experience and his stated intention to recuse himself on same-sex marriage issues, Republicans fiercely came to his aid. They said his work as a finance attorney was as complex as any cases Supreme Court justices handle, and they praised him as a man who understands the dignity and honor the position requires.

But in the end, the Republicans were not able to sway enough Democrats to vote to release the nomination of Harris, a finance attorney for 20 years, to the full Senate. There are two vacancies on the seven-member court.

It will be interesting to see if this is the last we hear from Harris, who is a rara avis of a Black, gay, Republican politician. The petulant Christie has said that he refuses to nominate a Democratic replacement for a sitting Justice who is fast approaching the mandatory retirement age of 70 until he gets two Republican additions to the court. It's not clear how the political standoff will be resolved, but I believe Democrats know that they need to stand up to a Republican governor who thinks he can bully people to get his way in a majority Democrat state.

Hat/tip to Rod 2.0

MD High Court: All Legal Marriages Valid Here, Too

Big news! The Maryland Court of Appeals, the highest court in the state, has issued a 7-0 ruling in a divorce of a lesbian couple (Jessica Port v. Virginia Anne Cowan) who were legally married in California in 2008 that all same-sex marriages legal in the jurisdiction when they were performed are valid and recognized in Maryland, as well!

Chris Geidner of Metro Weekly has the deets:

[N]o still viable decision by this Court has deemed a valid foreign marriage to be "repugnant," despite being void or punishable as a misdemeanor or more serious crime were it performed in Maryland. The present case will be treated no differently. A valid out-of-state same-sex marriage should be treated by Maryland courts as worthy of divorce, according to the applicable statutes, reported cases, and court rules of this State.

More importantly, even if a referendum is qualified this June (and passed this November) to invalidated Maryland's recently passed marriage equality law, Maryland residents can still go get married in any of the 6 states (and Washington, D.C.) that allow same-sex marriage and their marriage will be valid or legal in Maryland as well. It would take a state constitutional amendment to overturn this decision by Maryland's highest court.

This was already believed to be the law in the state of Maryland (like in Rhode Island) due to opinions issued by the relevant Attorneys-General of those states, but a ruling by the state supreme court settles the issue in Maryland and an executive order issued by the Governor of Rhode Island strengthens (but does not completely settle) the legal situation in that jurisdiction.

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!

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.

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.

Lesbian Confirmed To MA Supreme Court

As expected when she was nominated for the post a month ago, Barbara Lenk has become the first openly gay person on the Massachusetts Supreme Judicial Court, the state's highest court. The 7-member SJC is (in)famous for being the first state court to rule definitively that marriage equality is a fundamental right and that there is no rational reason or legitimate governmental purpose for denying civil marriage licences to same-sex couples (way back in November 2003).

The Boston Globe reports "Lenk approved for SJC; first openly gay justice on state's highest court":

The Governor’s Council confirmed Lenk on a 5-3 vote. She is Governor Deval Patrick’s fourth appointment to the seven-member SJC, which issued the landmark 2003 ruling that made Massachusetts the first state to legalize same-sex marriage. 

Lenk, who married her partner, Debra Krupp, after the ruling, has 18 years’ experience on the bench, a degree from Harvard Law School, and a doctorate in political philosophy from Yale. Patrick nominated her to replace Justice Judith A. Cowin, who is retiring. 

Lenk's confirmation hearing last week lasted more than seven hours, and was often contentious.
Critics raised questions about Lenk’s ruling in an incest case, and about whether she had avoided conflicts of interest when Krupp represented clients at the Appeals Court in her capacity as a lawyer for the state public defenders’ office. 

Social conservatives blasted Lenk, saying her appointment to the SJC would encourage the indoctrination of children into homosexuality. 

But Lenk had the full backing of the state’s legal establishment. Bar association leaders, former judges, and Lenk’s former clerks wrote letters to the Governor’s Council, saying Lenk’s critics were inappropriately focused on her sexuality and ignoring her legal credentials.

A frickin Ph.D from Yale AND a Harvard Law degree and heterosexual supremacists and homophobes were still complaining? That's just sick! "Have you no, decency, sir?"

Arkansas Supreme Court Strikes Down Anti-Gay Initiative

Great news out of Arkansas! (I don't think I have typed that sentence very many times before.) In November 2008, voters passed Initiative Act 1 by a vote of 57-43 but Thursday the Arkansas Supreme Court unanimously ruled it unconstitutional and struck the measure down in Arkansas Dep't of Human Services v. Cole. The ballot measure banned unmarried, cohabiting couples from being considered for the adoption or foster care of children in Arkansas. Of course, Arkansas also bans same-sex couples from marrying, so Initiative Act 1's passage implicitly banned all same-sex couples from adopting or fostering children in the state.

As always, Chris Geidner of Poliglot summarizes the legal issues perfectly:

The court noted: 

We hold that a fundamental right to privacy is at issue in this case and that, under the Arkansas Constitution, sexual cohabitors have the right to engage in private, consensual, noncommercial intimacy in the privacy of their homes. We further hold that this right is jeopardized by Act 1 which precludes all sexual cohabitors, without exception, from eligibility for parenthood, whether by means of adoption or foster care. We quickly note that in certain instances, such as in custody, visitation, or dependency-neglect matters, the State and the circuit courts of this state have a duty to protect the best interest of the child. We will discuss this issue more fully below.

Then: 

We strongly disagree with the State and FCAC’s conclusion that if this court finds that the categorical ban on adoption and fostering for sexual cohabitors put in place by Act 1 violates an individual’s fundamental right to sexual privacy in one’s home, state courts and DHS will be prohibited henceforth from considering and enforcing non-cohabitation agreements and orders in deciding child-custody and visitation cases as well as dependency- neglect cases. That simply is not the case. The overriding concern in all of these situations is the best interest of the child. 

Finally: 

Thus, Act 1 directly and substantially burdens the privacy rights of “opposite-sex and same-sex individuals” who engage in private, consensual sexual conduct in the bedroom by foreclosing their eligibility to foster or adopt children, should they choose to cohabit with their sexual partner. The pressure on such couples to live apart, should they wish to foster or adopt children, is clearly significant. ...

Here Act 1 presents a pernicious choice for Cole. She can either give up her fundamental right to sexual intimacy in her home free from investigation by the State into her sexual practices in order to adopt or foster or forego the privilege of having children by adoption or fostering. We hold that the burden inflicted on her is direct and substantial. 

The court, thus, concluded: 

We conclude that the individualized assessments by DHS and our trial courts are effective in addressing issues such as relationship instability, abuse, lack of social support, and other factors that could potentially create a risk to the child or otherwise render the applicant unsuitable to be a foster or adoptive parent. These would be the least restrictive means for addressing the compelling state interest of protecting the welfare, safety, and best interest of Arkansas’s children. By imposing a categorical ban on all persons who cohabit with a sexual partner, Act 1 removes the ability of the State and our courts to conduct these individualized assessments on these individuals, many of whom could qualify and be entirely suitable foster or adoptive parents. As a result, Act 1 fails to pass constitutional muster under a heightened-scrutiny analysis.

If an Arkansas Supreme Court will strike down such a statute it shows that heterosexual supremacists trying to pass similar ballot measures in other states would very likely face even more hostile courts in other jurisdictions.

An important win for the good guys! Another reason I'm a card-carrying member of the ACLU.

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 Justice Carlos Moreno Announces Retirement

Justice Carlos Moreno, 62,

Oh No! One of my heroes, California Supreme Court Justice Carlos Moreno, announced today that he is retiring from the California Supreme Court. Moreno, 62, was appointed to the court by Democratic Governor Gray Davis in October 2001. He is most well-known for being on the short list for President Obama's first Supreme Court justice pick to replace David Souter in 2009. Before that, Justice Moreno was in the 4-3 majority which legalized marriage equality in California in May 2008 and the sole dissenter in May 2009 when the California Supreme Court upheld Proposition 8 in a 6-1 decision under state law.

Equality California put out a statement praising Justice Moreno for his service and calling on Governor Jerry Brown to appoint an LGBT replacement:

“Justice Moreno has a long and very distinguished record of public service.  He took an unequivocal stance on the judicial branch’s moral responsibility to protect minorities. During his nine-year tenure, he has been a champion of equal protections for lesbian, gay, bisexual and transgender Californians, and he will leave behind an honorable legacy with his staunch commitment to uphold justice, fairness and equality.

“Governor Brown is now presented with a unique opportunity to make history by appointing the first openly lesbian, gay, bisexual, or transgender judge to the state’s highest court, and we urge him to consider nominating an openly LGBT judge to fill the vacancy.” 

There are only three known out state Supreme Court justices nationwide, 2 in Oregon and one in Colorado.
With Moreno's departure California's 7-member highest court will have no Latino or African-American members, but will have 3 Asian members (Chin, Cantil-Sakauye, Kennard), and 4 women (Cantil-Sakauye, Corrigan, Kennard and Werdegar).

Latina Lesbian Named To Colorado Supreme Court

Monica Marquez, 41, has been  named by Democratic governor Bill Ritter to become the first out lesbian and first Latina to be on the Colorado Supreme Court.

"It is not because Monica is a Latina or because she is gay," Ritter said, according to The Denver Post. "I chose her because of her analytical ability and her keen intellect."

Interestingly, Oregon CURRENTLY has two openly gay State Supreme Court Justices, Virgina Linder and   Rives Kustler.


Hat/tip to Nan Hunter

9th Circuit Issues Stay On Perry; Expedites Appeal

Today, the 9th Circuit Court of Appeals granted a stay in Perry v. Schwarzenegger, a.k.a. "The Prop 8 case" which means that same-sex couples will not be marrying in California any time soon.The decision overturn's Judge Vaughn Walker's denial of a stay last Thursday of his previous landmark decision issued last Thursday. The 9th Circuit also set an expedited schedule for the court, setting a trial date for the week of December 6th, 2010.

Here's the order at the special website the 9th circuit has set up for the case:

“Appellants’ motion for a stay of the district court’s order of August 4, 2010 pending appeal is GRANTED. The court sua sponte orders that this appeal be expedited pursuant to Federal Rule of Appellate Procedure 2. The provisions of Ninth Circuit Rule 31-2.2(a) (pertaining to grants of time extensions) shall not apply to this appeal. This appeal shall be calendared during the week of December 6, 2010, at The James R. Browning Courthouse in San Francisco, California.

The previously established briefing schedule is vacated. The opening brief is now due September 17, 2010. The answering brief is due October 18, 2010. The reply brief is due November 1, 2010. In addition to any issues appellants wish to raise on appeal, appellants are directed to include in their opening brief a discussion of why this appeal should not be dismissed for lack of Article III standing. See Arizonans For Official English v. Arizona, 520 U.S. 43, 66 (1997).

IT IS SO ORDERED.

There are several significant part of this one-page ruling. 1) Having a federal appellate trial less than 4 months away is incredibly fast for appellate litigation. The Prop 8 proponents have to file their brief by September 17th (1 month away) and our side a month after that and then the bad guys get to respond two weeks later and then oral arguments commence two weeks after that. There is no time frame as to how long after oral arguments the 9th Circuit will issue its ruling,, but it is signalling that it wants to dispose of the case quickly. 2) The last sentence asking for a discussion (see students, it's an essay prompt!) about why the appeal should not be dismissed for lack of standing is also a plus on our side.

GOP Kills 2 API Federal Judicial Nominations

Edward M. Chen, federal district court nominee

Wow. The GOP must really care about what people of color think about their actions. What they really do care about is the (federal) judiciary. So, it is notable that they have done their best to kill the nominations of two Asian-American men to be federal judges in the 9th Circuit.

Goodwin Liu and Edward Chen were nominated to the federal judiciary by President Obama but blocked by Republicans despite having received 12-7 endorsements from the Senate Judiciary committee.

Under a rarely invoked rule, the Senate must agree to carry over pending nominations when it goes on a 30-day recess. But Republican leaders objected to carrying over several disputed nominees, including Liu and Chen.

"The Republicans are obstructing and, in effect, trying to kill these nominations," Sen. Dianne Feinstein (D-Calif.) said Friday. "It is tragic because these are very worthy nominees who deserve to have their nominations debated and put to a vote."

The San Francisco Chronicle explains why the Republicans are blocking the confirmation of Liu and Chen to the bench.

Liu, a former Rhodes scholar and Supreme Court clerk, has been labeled an extreme liberal by Republican opponents, who cite his support of same-sex marriage and affirmative action.

Chen's opponents point to his background as an American Civil Liberties Union lawyer in San Francisco from 1985 until 2001, when federal judges appointed him as a magistrate.

Under procedures requiring unanimous consent, Republicans have regularly objected to holding Senate votes on Obama's judicial candidates.

They agreed to allow a handful of confirmation votes Thursday, the last day before the recess. But they blocked votes on more than 40 other candidates, and returned five who have encountered opposition, including Liu and Chen, to the White House.

If renominated, Liu and Chen will return to the Judiciary Committee for new votes after Congress returns Sept. 13. To force the Senate to consider their confirmation over Republican objections, Senate Democrats would have to muster 60 votes, which would require support from at least one Republican.

As I noted last month, whether Goodwin Liu joins the 9th Circuit Court of Appeals is a key test to see whether President Obama will actually go to bat for things that progressives believe in.

The 9th Circuit, of course is the appellate court which will be hearing the appeal of Perry v. Schwarzenegger, the Proposition 8 case.

Connecting Federal Rulings on Prop 8 and SB 1070

My friend Sandip Roy has a great piece up on Salon magazine connecting the two recent federal rulings on Arizona's SB 1070 and California's Proposition 8. Called "Proposition 8 and S.B. 1070: Sisters under the skin?", Sandip writes from the perspective of a queer immigrant to point out that the two apparently disparate rulings validated two parts of his identity but stemmed from the same law: the 14th amendment to the U.S. constitution.

On July 28 Susan Bolton issued an injunction that defanged the anti-immigrant S.B. 1070 in Arizona. On Aug. 4, Vaughn Walker found California’s Proposition 8 that outlawed same-sex marriage unconstitutional. For this they will both be tarred as “judicial activists.” Judge Bolton has received death threats. Judge Walker is being denounced.

I have no idea if the two judges know each other, but within one week, they had suddenly brought together two parts of who I am. As a gay immigrant, I am used to juggling identities, never sure which one is acceptable in which setting, which one I should check at the door.

[...]

The fight over Proposition 8 in California rested on the 14th Amendment of the U.S. constitution. What Judge Walker found was Proposition 8 violated the due process and equal protection clause of the 14th Amendment to the Constitution.

The fight over illegal immigration is about federal jurisdiction and states' rights but it also boils down to the 14th Amendment. That’s the grand prize, the Holy Grail that the Russell Pearces of Arizona are really aiming to overturn. Pearce wrote in an e-mail obtained by CBS 5 News: "I also intend to push for an Arizona bill that would refuse to accept or issue a birth certificate that recognizes citizenship to those born to illegal aliens, unless one parent is a citizen."

[...]

Yes, both victories are just rest stops in much bigger fights. Both fights are probably headed for an uncertain future in the U.S. Supreme Court. But until today I didn’t realize that in some ways it’s the same fight. Supervisor David Campos told the cheering crowd that this was about "justice for all" -- not just "gays and lesbians, but immigrants and minorities and transgender."

That can sound like San Francisco big umbrella talk. But these cases touch each other in ways I didn’t realize. My numerologist friend said, "Of course they do, the digits in 1070 add up to, you guessed it, 8."

[...]

If the twin judgments show anything it's this. Though the crowd that celebrated Bolton’s decision in Phoenix might look different from the crowd celebrating Walker’s ruling, these are sisters under the skin. As [Equal Justice Society's Eva] Paterson reminded the crowd, "It’s the same law that gave equality and protection to immigrants in Arizona."

A great example of intersectional analysis at work..

Federal Court Hears Challenge To DOMA

Today, federal judge Joseph Tauro is hearing oral arguments in Gill v. Office of Personnel Management, a constitutional challenge to Section 3 of the 1996 Defense of Marriage Act, which purports to disallow any federal benefits to any marriage which does not consist of one man and woman.

Cue the press release:

Federal Court Hears Arguments in DOMA Challenge

This morning in Boston, six years after the first same-sex couples in the country started marrying in Massachusetts, eight married same-sex couples and three widowers went to Federal District Court to hear arguments in their challenge to Section 3 of the federal Defense of Marriage Act (DOMA). DOMA defines marriage as only between a man and a woman for all purposes under federal law.

Represented by Gay & Lesbian Advocates & Defenders (GLAD), the plaintiffs in Gill et al. v. Office of Personnel Management, all married in Massachusetts, have each been harmed by DOMA treating them as unmarried.

“This is a classic equal protection issue. The Constitution applies to gay and lesbian citizens, and married ones, too,” Mary L. Bonauto, GLAD’s Civil Rights Project Director, told the Court. “What governmental purpose does the US have as an employer in treating some of its married employees, retirees and surviving annuitants differently from other married persons, such that Nancy Gill pays for a self and family plan like some of her married colleagues, but the plan doesn’t cover her own spouse?”

Bonauto presented a three-pronged legal argument: By singling out only the marriages of same-sex couples, DOMA violates the equal protection clause of the United States Constitution; DOMA represents an unprecedented intrusion of the federal government into marriage law, which for 230 years has been legislated by states; and by denying federal protections to families, DOMA burdens the marriages of same-sex couples and their right to maintain family integrity.

U.S. District Court Judge, Joseph L. Tauro, vigorously questioned plaintiffs and defendants in a courtroom packed with supporters and media. Judge Tauro heard GLAD’s motion for summary judgment as well as the federal government’s motion to dismiss. The hearing addressed the core issue of whether DOMA Section 3 is constitutional six years after the first same-sex couples in the country started marrying in Massachusetts, the result of GLAD’s groundbreaking marriage case, Goodridge v. Department of Public Health.

As a result of DOMA, passed by Congress in 1996, plaintiffs in GLAD’s lawsuit have been denied survivor benefits on a deceased spouse’s pension; denied health insurance coverage for a spouse on a federal family plan; denied Social Security spousal, death, and widower benefits; and denied the ability to file federal income taxes jointly as married.

“DOMA means that our country doesn’t treat our family or our marriage as equal to our friends’ and coworkers’ families,” said plaintiff Nancy Gill after the hearing. A U.S. Postal Service employee, Gill, with her spouse Marcelle Letourneau, is raising two children in Brockton. “Under DOMA, we are not married, and my federal employer must deny Marcelle my health benefits. Under DOMA Marcelle won’t receive the federal health benefit given to surviving spouses. She’ll also be denied my pension benefits.”

Gill was filed on March 3, 2009, and has been called the case with the greatest potential for national impact by the National Law Journal. The Gill legal team is led by Bonauto and GLAD Legal Director Gary Buseck, and staff attorneys Nima Eshghi, Janson Wu, and Samuel Bickett. Co-operating counsel on the case include Foley Hoag LLP (Boston), Sullivan & Worcester LLP (Boston), Jenner & Block LLP (Washington, DC) and Kator, Parks & Weiser, PLLC (Washington, DC).

Gay & Lesbian Advocates & Defenders is New England’s leading legal organization dedicated to ending discrimination based on sexual orientation, HIV status, and gender identity and expression.

Information about the case, the plaintiffs, and the attorneys representing them can be found at www.glad.org/doma.

This lawsuit has a very good chance of succeeding, even with a court with Scalia on it.