1 Corinthians 5:12 What business is it of mine to judge those outside the church? Are you not to judge those inside? 

We are all too familiar with California and Proposition 8 (titled “Eliminate the Right of Same-Sex Couples to Marry”). But I doubt you are familiar with the 2004 election and the 20 other such amendments that were passed that year! Propositions titled as “Alabama Marriage Amendment”, “State Issue One” (Ohio), and “Mississppi Marriage Amendment”.

The 2004 election saw the Bush-Cheney ticket running it’s course against democratic contender John Kerry. Now at the time, Marriage Equality hadn’t been an issue really since 1996 when the United State Congress passed the Defense of Marriage Act (DOMA) in lieu of Hawaii having legalized it (for a day, before it’s own State Legislature outlawed it).

But the US Supreme Court had, in 2003, decided ‘Lawrence v. Texas’ which made it unconstitutional (and thus illegal) to enforce the 14 sodomy laws still on the books in the United States. One of the Supreme Court justices had written in his dissent (written opinion against a ruling) that ‘Lawrence v. Texas’ took away the legal reasoning in denying marriage rights to same-sex couples. That and the fact that Massachusetts had legalized the next year, in early 2004 in the case ‘Goodridge v. Department of Public Health.

These events shook up a wasps’ nest of homophobic activity within the nation. Hate crimes against gays and lesbians rose, and Conservatives went on Air to deride homosexuals as “pedophiles”, “corrupters of the youth”, and “persons that tear at the fabric of society”. The RNC, seeing the advantage in getting out the vote in an election year, then coordinated over 20 marriage amendments over the subsequent months in a number of swing-states in the south and midwestern United States. Conservative Catholics and Evangelicals swamped the polls on election day.

In Ohio, despite the fact the over $942,000 was spent in opposition to Issue One, the amendment passed with 61% of the vote. To that end, it is suggested that it was because of that referendum in Ohio that Bush got reelected as it energized social conservatives and got out the vote in favour of the Republican Party, to which end no Republican president has gotten elected without Ohio since Abraham Lincoln. And after all, it was the RNC (Republican National Convention) that assisted and endorsed the marriage amendments.

The Democratic base also split during the election. At the time only about 30% of Democrats were in favour of Marriage Equality (preferring civil unions instead). John Kerry (himself a supporter of only civil unions, as was George Bush) lost the election by a wide margin and none of the 20 plus amendments introduced were defeated, nor were the other 10 passed before 2004 or after.

What made Prop 8 in California so different was that it rescinded those rights which had been previously granted (Marriage Equality only lasted 7 months).

But the American public in general was, at the time, only in favour of it by a small margin. Only 36% were pro-equality. Since then, it has grown to 52%!

And this year, we may see Maine, Maryland, Washington vote for marriage equality in referendums legalizing it! Which has never been done before! And we may see Minnesota vote against a proposed anti-marriage equality amendment which also has never before happened! And we may see Ohio hold a referendum in November 2013 to repeal the amendment it passed in 2004 (which wouldn’t legalize marriage equality, but would make huge headway. Next it’s laws against equality would either have to be struck down by a court or legislatively repealed)!

We are still awaiting Prop 8 to be struck down (we may know if the Supreme Court will deny review, thus leaving the 9th Circuit Court’s judgment that it’s unconstitutional in place. Or if it will want to review the case further, thus expanding the wait ‘til late next July.) and we are also waiting for the Supreme Court to strike down sec. 3 of DOMA (which outlaws federal recognition of same-sex marriages) and for Congress to repeal the Act completely (erasing it from the books and requiring all states to recognize such marriages).

The gay Civil Rights Movement is at the beginning of the end! Marital discrimination is getting attacked now and the federal government is making progress on ending anti-LGBT discrimination in the workplace the School.

Soon the religious-right (NOM, PFOXX, Side-B, and Side-X) will all just be a bad memory. Like the people who opposed interracial marriage, opposed abolition, and opposed women’s voting rights.

But for now we have to wait until the day comes when we have our civil rights and acceptance in all places.

-Ian

On Aug. 31, the Supreme Court Justices will decide if they will grant ‘a writ of Certiorari’ (a notice stating they have agreed to hear the case) to the supporters of prop 8. Should they grant it (it requires four out of nine justices to do so), the case will be heard early 2013 and decided in June.

IF they don’t, however, the 9th Circuit’s previous ruling that Prop 8 is unconstitutional shall enter effect and the State of California shall not be able to enforce it any longer (Supremecy Clause of the US Constitution).

As it is, the lower courts ruling is ‘stayed’ (on hold) until the Supreme Court either strikes down the amendment to the State of California’s constitution (which is what Prop 8 is) or denies ‘Certiorari’.

In any event, Prop 8 will need to be repealed (deleted) from the CA State constitution as it willbe a useless legal statement and a discriminatory one at that.

Personally, I expect review to be denied and for Marriage Equality to return to California by the end of August (just a little over 4 years since it was first granted!).

Be on the lookout for the result on Aug 31st!

-Ian

By Scottie Thomaston

Edited and updated for clarification

David Blankenhorn, who founded the Institute for American Values, testified in the Prop 8 trial as a witness in favor of Proposition 8. He is the witness who, when cross-examined by attorney David Boies with questions on how marriage equality would harm heterosexual marriage, replied “The safest answer is: I don’t know.” (Later attorney Charles Cooper, defending Proposition 8, told Judge Walker the same thing: “I don’t know.”) He is also the witness who said we would be “more American” on the day marriage equality is legalized.

He evolved a bit further when he came out against North Carolina’s anti-gay Amendment 1earlier this year.

Today in an op-ed in the New York Times, Blankenhorn says he now supports marriage equality:

IN my 2007 book, “The Future of Marriage,” and in my 2010 court testimony concerning Proposition 8, the California ballot initiative that defined marriage as between a man and a woman, I took a stand against gay marriage. But as a marriage advocate, the time has come for me , to accept gay marriage and emphasize the good that it can do. I’d like to explain why.

He says that he has some reservations about gay relationships, but under the law these relationships should be afforded equal dignity:

For me, the most important is the equal dignity of homosexual love. I don’t believe that opposite-sex and same-sex relationships are the same, but I do believe, with growing numbers of Americans, that the time for denigrating or stigmatizing same-sex relationships is over. Whatever one’s definition of marriage, legally recognizing gay and lesbian couples and their children is a victory for basic fairness.

Another good thing is comity. Surely we must live together with some degree of mutual acceptance, even if doing so involves compromise. Sticking to one’s position no matter what can be a virtue. But bending the knee a bit, in the name of comity, is not always the same as weakness. As I look at what our society needs most today, I have no stomach for what we often too glibly call “culture wars.” Especially on this issue, I’m more interested in conciliation than in further fighting.

Importantly, and surprisingly – especially coming from a pro-Proposition 8 witness – Blankenhorn admits outright that much of the opposition to gay relationships isn’t based on the things others have suggested: honest disagreement or respect for tradition or religion; rather it’s based on anti-gay animus:

And to my deep regret, much of the opposition to gay marriage seems to stem, at least in part, from an underlying anti-gay animus. To me, a Southerner by birth whose formative moral experience was the civil rights movement, this fact is profoundly disturbing.

Blankenhorn says he wants to move forward and work together to build coalitions with gays and straights alike to strengthen marriage.

(Source: prop8trialtracker.com)

If you’re following the trial of California’s Proposition 8 (“Eliminates the Right of Same-Sex Couples to Marry”) which was enacted via referendum in 2008, heres the summary of what’s happened in the 9th Circuit US Court of Appeals:

1. Tried at District Level Ruled Unconstitutional under the 14th Amendement (May 2009-August 4th, 2010)
2. Appealed Tried by 9th Circuit Panel of 3 Judges Upheld District Court’s ruling 2-1, ruling narrowed only to California’s specific case. (February 7, 2012)
3. Appealed to En Banc Court of the 9th Circuit Judges Appeal denied by 9th Circuit (June 5, 2012)
4. Appeal for certiorari (Review) by Supreme Court of the United States - PENDING, to be accepted or denied later this fall

By Scottie Thomaston

The judges sitting in the Ninth Circuit have issued a new order in the Perry v. Brown case today. The full panel of Ninth Circuit judges have decided that en banc rehearing of the three-judge panel’s decision will not be granted. This comes after a months-long wait: the proponents of Proposition 8 announced their intention to seek en banc review of the Ninth Circuit’s three-judge panel decision on February 21 of this year. As we noted yesterday, the decision to deny rehearing of the case with a new, randomly-selected eleven judge panel means that Judge Reinhardt’s opinion, which was joined by Judge Michael Daly Hawkins and garnered a dissent by Judge N. Randy Smith, either way, will likely be appealed to the Supreme Court where the proponents will now likely file a petition for certiorari, asking them to review and possibly overturn Judge Reinhardt’s opinion for the Ninth Circuit’s panel of three judges.

An en banc rehearing at the Ninth Circuit Court of Appeals is much different from other circuits. Generally, en banc means that the entire court will rehear the case, with all judges in the circuit participating. But the Ninth Circuit has an inordinately large number of judges, so they have a procedure wherein they have an ‘en banc panel’ consisting of eleven judges: ten randomly-chosen judges plus the Chief Judge (at the Ninth Circuit that is Alex Kozinski) presiding. If rehearing had been granted, the randomly selected panel could have heard arguments and issued new briefing in the case or they could have decided to forgo that and issue a new decision without it.

Now that en banc rehearing was denied, the proponents have 90 days to file a petition for certiorari to the Supreme Court, seeking review of the decision striking down Proposition 8. It’s likely that Justices at the Supreme Court would have their conference to take up the petition and decide whether to grant review or not sometime after their summer break in October. Oral argument would follow a few months later, and then a final decision would be issued by June or July 2013.

Judge O’Scannlain has filed a dissent from the denial of en banc rehearing joined by Judges Bybee and Bea, and in it he discusses his belief that Judge Smith’s dissent was correct. He says that “we have now declared that animus must have been the only conceivable motivation for a sovereign State to have remained committed to a definition of marriage that has existed for millennia.”

No one is certain if the Supreme Court would grant review of the case as it currently stands. Judge Reinhardt’s opinion for the three-judge Ninth Circuit panel is very narrow and the holding is specific to California’s unique legal circumstances. A denial of rehearing in this case leaves the decision California-specific and there may not be four Justices – the number needed to grantcertiorari – who want to visit an issue that’s so limited in scope. On the other hand, the panel’s decision did strike down an amendment to a constitution of an enormous state involving a contentious issue. And allowing gay couples to marry in California would nearly double the amount of people in the United States who live in an area that allows same-sex marriage.

This process has gone on for so long. The complaint was initially filed on May 22, 2009 and the trial began on January 11, 2010. Judge Walker didn’t issue a decision in the case until August 4, 2010. The Ninth Circuit’s ruling came much later, with the three-judge panel issuing its ruling on February 7 of this year. Now the Perry case is entering its final phase.

Now that the Ninth Circuit has denied en banc rehearing of the three-judge panel’s decision, the case will face its final test soon, at the Supreme Court, as the proponents are widely expected to seek review of the three-judge panel’s decision. If the proponents do file a petition for certiorari the Justices will look at the petition in a conference later this year where the final decision will be made: review the case or let the Ninth Circuit’s decision be the final word in this long journey to decide the fate of the odious Proposition 8. It promises to be an exciting year.

By Scottie Thomaston

AFER just broke the news that tomorrow, there will be an order in Perry v. Brown, the challenge to Proposition 8 that’s currently in the Ninth Circuit:

Here’s where things stand right now: the Ninth Circuit, in a decision by a three-judge panel has affirmed Judge Walker’s decision striking down Proposition 8 as unconstitutional, albeit on narrower grounds than he did. Then, the proponents of Proposition 8 asked the Ninth Circuit for an en banc rehearing, to vacate their decision and put the case before a larger panel of judges on the Ninth Circuit. We have been waiting for the judges to decide whether they will grant the en banc rehearing and start the whole process over, or let the three-judge panel’s decision written by Judge Reinhardt stand.

Tomorrow, we will likely find out what the judges decided regarding the en banc hearing. If they voted to rehear the case, the current narrowly-written decision by Judge Reinhardt goes away and a new panel will convene, featuring a random selection of ten judges with the addition of Chief Judge Kozinski overseeing the proceedings. There would be new briefings and oral arguments in the case at that point, so the process would be long and drawn out. The issues that would be at stake in a new rehearing would be: whether proponents have Article 3 standing as ballot initiative proponents to bring the appeal in the first place, and whether or not Judge Walker’s decision should be affirmed. If rehearing is granted, the en banc panel could affirm Judge Walker’s decision, or they could reject it on the grounds discussed in Judge Smith’s dissent. After new briefing and new argument and new deliberations over the decision, they would issue a new and final decision in the case that could then result in a petition for certiorari (or ‘review’) at the Supreme Court. Depending on what the final decision ruled, it’s unclear whether the Supreme Court would take up the case or not.

Alternatively, tomorrow the Ninth Circuit could issue an order saying that en banc rehearing was denied. If that happens, Judge Reinhardt’s narrow opinion stands, and the proponents of Proposition 8 can then petition for certiorari at the Supreme Court. If the Supreme Court were to deny review, the Ninth Circuit’s decision would stand, and Proposition 8 would be struck down. Gay and lesbian couples would be allowed to marry in California. If the Supreme Court grants review, there will be briefing and oral argument and a decision next year.

Tomorrow, we will have more as soon as the new order is released by the Ninth Circuit.

(Source: prop8trialtracker.com)