hunter of justice

The Perry case and the roller coaster ride to come

As I am sure my readers know, two aging super-litigators with too much time on their hands - Gore lawyer David Boies and uber-Republican Ted Olson - have joined forces to argue that Prop 8 violates the Equal Protection Clause of the U.S. Constitution.  They are correct, of course. But as everyone also knows, the lgbt advocacy groups have successfully prevented a federal constitutional challenge to marriage exclusion for more than a decade. This is because the current Supreme Court is, shall we say, extremely unlikely to rule favorably.

Now along come Dave and Ted looking for a new way to regain the media spotlight (watch press conference here) and, voila, we have a whole new ballpark opening with a whole new (major league) addition to the endless-gay-marriage-debate world series. And indeed for those who are only spectators to what admittedly can seem at times like a spectacle, the new lawsuit will shake things up and provide some excitement and entertainment.  But for those who are serious advocates, it will bring endless and unnecessary headaches.

More important than the complaint in the new case is the fact that plaintiffs are seeking a preliminary injunction, meaning that they are asking the court to block enforcement of Prop 8 immediately. (See motion for preliminary injunction.) To justify such fast action before any factual hearing, courts require plaintiffs to demonstrate that they have a strong likelihood of success on the merits. This move forces the court to go quickly to the underlying legal claim, even though it imposes a higher-than-normal standard for the plaintiffs to meet; ie, they have to persuade the judge not just that they are correct, but that it isn't a close case, and that they clearly would win after fuller consideration of background facts and so forth. It is true that in this situation, one imagines that everyone in California not living in a cave has pretty much heard as much about gay marriage as it is possible to absorb, but that is different from the kinds of facts about, for example, the impact of the exclusion on gay families that lawyers could develop and present to the court on a slower time track. (By contrast, building a rich factual record was Lambda's strategy in their successful Iowa case.)

So the new lawsuit (Perry v. Schwarzenegger) is now scheduled to be heard before Judge Vaughn Walker in federal court in San Francisco in a little more than a month: July 2. Judge Walker is known as a somewhat unorthodox conservative. It seems hard to imagine that he will grant this preliminary injunction, but then you never know about California Republicans.

In any event, either a denial or a grant of a preliminary injunction is immediately appealable (most decisions prior to final judgment cannot be appealed, but rulings on an injunction are an exception). This means that the case will go to the Ninth Circuit, possibly by the end of this year. Things get interesting there, because the Ninth Circuit Court of Appeals has ruled (in Witt v. United States, 527 F.3d 806) that infringements of important liberty rights based on sexual orientation will be closely scrutinized.  The court wrote:

We hold that when the government attempts to intrude upon the personal and private lives of homosexuals, in a manner that implicates the rights identified in Lawrence, the government must advance an important governmental interest, the intrusion must significantly further than interest, and the intrusion must be necessary to further that interest.

Will the Court of Appeals strike down Prop 8?  It all depends on the panel - which three judges are chosen at random to hear the appeal.  Whatever their decision (and it could take a while), the losing side will seek to have the entire Ninth Circuit hear the case again, en banc. 

What all this means is that lots and lots of words will be written on the constitutionality of Prop 8 - and implicitly, on the legitimacy of every other state constitutional amendment barring gay marriage. And the words will be virtually the first on gay marriage from the federal judiciary (with a few minor exceptions). And they will be very, very important.

[There is also a much less well known case that was filed in early March, which is in federal district court in Santa Ana, CA: Smelt v. United States. It too challenges Prop 8 and also DoMA on federal constitutional grounds. The government's response to the complaint in that case is due June 11. Plaintiffs did not seek a preliminary injunction, which means that it is unlikely that Smelt will get to the Court of Appeals before Perry, although if the judge dismisses the complaint for failing to make a viable claim, that order can be appealed.]

Either case can only truly be won with a victory in the Supreme Court. Would Stevens, Kennedy, Ginsburg, Breyer and Sotomayor rule that state constitutional amendments barring gay marriage were unconstitutional under the Fourteenth Amendment? If they weren't Supreme Court Justices, I actually think they might.  That is, if they were voting in a legislature or a referendum, I think it is possible that public opinion has shifted so much on this issue that at least several of these five individuals might be persuaded that the current regime is unconstitutional. But would they - all five of them - put the Court in the still definitively minority position of mandating this kind of equality in every state?  I just don't see that happening.

The Perry case could also be not lost, in two ways that come immediately to mind.

First, I can imagine a scenario in which the Ninth Circuit strikes down Prop 8, and then the state of California (assuming that some progressive Dem is making the decision) elects not to seek review in the Supreme Court.  Of couse, rightwingers can imagine the same scenario, which is why the Alliance Defense Fund is seeking to intervene as a defendant. Given that California AG Jerry Brown did decline to defend Prop 8 in the Strauss case before the state supreme court, I think that ADF has a pretty good argument for being granted intervenor status.  Once a party has intervened, it can file appeals and make the other litigation decisions that an original party can make. An intervenor is not relegated to filing amicus briefs, the great majority of which are read only by the judges' clerks.

Second, California voters could repeal Prop 8, thus making the case moot. How ironic is it that civil rights advocacy groups might seek a popular referendum so that they don't have to live with the decision of a federal court?

Is it impossible that this lawsuit - of all cases - will turn out to be the gamechanger, the big kahuna of lgbt rights? No. And the stock market could gain 1,000 points on Monday.  But I wouldn't put any money on either of those long shots paying off.

In 1976, Sotomayor stood up for gay college students

The Michigan Messenger blog has posted a letter originally published in The Daily Princetonian in 1976 that condemns the ransacking of a dorm room shared by two members of the Gay Alliance of Princeton. Among the 39 signers was an undergraduate named Sonia Sotomayor.

The letter reads, in part:

For private citizens to try to intimidate the Gay Alliance into silence is a denial of the foundations on which a university is built.

No matter how much one may disagree with the Gay Alliance or the policies they are advocating, no matter how repugnant one may find homosexuality, the manner of expressing this opposition should be intellectual. At this university we are dedicated to persuasion by reason, not by brute force.

Intimidation of those courageous enough to express their views, violence directed against unpopular associations, midnight criminal assaults on private residences— these speak for themselves. The entire university community should be angry, and disgusted, that this kind of action has occurred at Princeton.

By itself, the letter tells us nothing but that Sotomayor joined an entirely conventional appeal to the values of free speech and for preservation of an intellectual culture based on reason. But 1976 was a long time ago. Straight college students did not write law school admission essays about their aspiration to work for gay equality. Probably no one on earth would have known or cared if she had simply declined to sign. I don't mean to overstate its significance, but the letter solidifies my sense that Sotomayor's nomination is the best thing to come out of this White House yet.

The Prop 8 challenge decision: less than meets the eye, but promising more to come

Despite all the heartburn it has engendered, my bet is that Strauss v. Horton (2009 WL 14444594), the decision upholding Prop 8, will not have much lasting effect, at least directly, on lgbt rights law.

Fundamentally, the case was about the criteria necessary before a change to the California constitution could be considered a revision rather than an amendment. The most important issue it raised was how to classify an amendment depriving a minority of a deeply important symbolic, although only symbolic, badge of inferiority. The California Supreme Court was not the first to find that a marriage inequality amendment should be considered an amendment rather than a revision: as the opinion noted, appeals courts in Oregon and Alaska reached exactly the same result upholding exactly the same distinction in those state constitutions.  But the California court was not bound by the other rulings. It could have engaged the much more difficult - and interesting - question of what equality means when a separate status is materially equal, but nonetheless functions as inescapable social stigmata. Denying the "m" word may seem trivial, but its effects can metastasize throughout the daily lives of gay Californians who would choose to marry, eating away at their human dignity.

The court could have gone there, but it didn't, and instead provided a mechanical, low-key rationale for why this one change didn't fundamentally alter the constitutional structure of state government. The continuing recognition of sexual orientation as a suspect classification for state law purposes merely illustrates that marriage is the only zone of de jure distinctions in state law that anyone bothers to fight about much any more, at least in progressive states like California.

The decision does leave Connecticut as the only state where the highest court has ruled that an already existing civil union system is not constitutionally sufficient, and that the term "marriage" must be open to same-sex couples in order for equality to be achieved. However, legislatures in the Northeast are moving on their own. Vermont essentially came to the same conclusion legislatively, and New Jersey seems poised to follow the Vermont sequence (lose marriage case in court --> adopt civil unions --> win marriage in legislature) later this year. New Hampshire, perhaps joined by New York, may adopt the Massachusetts/Iowa/Maine model of skipping civil unions entirely and going directly from no state recognition of same-sex couples to marriage.

I suppose that one silver lining of the Prop 8/Strauss outcome is that it should silence those who argue that the lgbt community has achieved so much political power that it no longer needs heightened constitutional protection. California has become the 30th state in which the constitution explicitly singles out gay people for exclusion from a fundamental right. That's stunning and certainly unique. It's both a political mountain that will have to be climbed and evidence of a degree of opprobrium and assumption of moral superiority that's pretty breathtaking.

Indeed, framed that way, the success of the anti-gay state constitutional amendment strategy creates a pretty damn good argument for federal constitutional recognition of sexual orientation as a suspect class. Which brings up the last indirect and ironic byproduct of the Prop 8 decision - the wacky world of David Boies' and Ted Olson's arrogant new adventure in litigation.  More on that in a later post.

History of right-wing attacks on Judge Sotomayor

With the news that President Obama has nominated native Nuyorican and Yankee fan (also Judge of the Second Circuit) Sonia Sotomayor to the Supreme Court, we know that as night follows day, conservatives will attack her as ... pretty much anything they can think of.  They will pretend to be shocked - shocked! - that the President could put forth a nominee who is so controversial.  When they do, remember that they have a history of this, not just with the nominees of Democratic Presidents, but specifically with Judge Sotomayor.

President Obama's selection was effectively made possible by President Clinton's naming her to the Court of Appeals. When Clinton nominated then District Court Judge Sotomayor to the Second Circuit 12 years ago, Republicans in the Senate stalled her confirmation for more than a year. So along with everything else you read about her, remember this article from the NY Times on June 13, 1998:

Judge Sonia Sotomayor seemed like a trouble-free choice when President Clinton nominated her to an appeals court post a year ago. Hers was an appealing story: a child from the Bronx housing projects who went on to graduate summa cum laude from Princeton and become editor of the Yale Law Journal and then a Federal prosecutor. Moreover, she had been a trial judge since 1992....

But Republican senators have been blocking Judge Sotomayor's elevation to the appeals court for a highly unusual reason: to make her less likely to be picked by Mr. Clinton for the Supreme Court, senior Republican Congressional aides said in interviews. ...

Judge Sotomayor's nomination was approved overwhelmingly by the Senate Judiciary Committee in March. Of the judicial nominees who have cleared the committee in this Congress, she is among those who have waited the longest for a final vote on the floor.

Senate Republican staff aides said Trent Lott of Mississippi, the majority leader, has agreed to hold up a vote on the nomination as part of an elaborate political calculus; if she were easily confirmed to the appeals court, they said, that would put her in a position to be named to the Supreme Court. And Senate Republicans think that they would then have a difficult time opposing a Hispanic woman who had just been confirmed by the full Senate.

''Basically, we think that putting her on the appeals court puts her in the batter's box to be nominated to the Supreme Court,'' said one senior Republican staff aide who spoke on the condition of anonymity. ''If Clinton nominated her it would put several of our senators in a real difficult position.'' ...

Senator Patrick Leahy of Vermont, the senior Democrat on the Judiciary Committee, was blunt in his criticism of the Republicans who are blocking a confirmation vote. ''Their reasons are stupid at best and cowardly at worst,'' he said. ''What they are saying is that they have a brilliant judge who also happens to be a woman and Hispanic, and they haven't the guts to stand up and argue publicly against her on the floor,'' Senator Leahy said. ''They just want to hide in their cloakrooms and do her in quietly.'' ...

On Sept. 30, the day of her confirmation hearing, Rush Limbaugh, the conservative radio talk show host, warned the Senate that Judge Sotomayor was an ultraliberal who was on a ''rocket ship'' to the Supreme Court. That day, Judge Sotomayor was questioned closely by Republicans. In the end, the only Republicans to vote against her were Senator John Kyl of Arizona and Senator John Ashcroft of Missouri....

Draft of Secretary Clinton's announcement of same-sex partner benefits

The Advocate has published what it describes as a leaked version of the forthcoming State Department policy on same-sex partners of Foreign Service Officers:

DRAFT INTERNAL RELEASE

For Review


Today, I am pleased to announce that the Department of State will be extending a number of benefits and allowances to domestic partners of members of the Foreign Service assigned abroad. 



While a career in the Foreign Service is rewarding, the demands to serve our country both at home and abroad also require great sacrifice by our Foreign Service personnel and their families as well. Family members often must uproot their lives, endure hardship conditions, and put their own careers on hold. Like all families, our Foreign Service families come in different configurations; all are part of the common fabric of our Post communities abroad. 



Historically, domestic partners of Foreign Service members have not been provided the same training, benefits, allowances, and protections that other family members receive. These inequities are unfair and must end. Providing training, medical care, and other benefits to domestic partners promote the cohesiveness, safety, and effectiveness of our Posts abroad. It will also help the Department attract and retain personnel in a competitive environment where domestic partner benefits and allowances are increasingly the norm for world-class employers. At bottom, the Department will provide these benefits for both opposite-sex and same-sex domestic partners because it is the right thing to do. 


The Department will be exercising its inherent authority to change its regulations in the Foreign Affairs Manual and Department of State Standardized Regulations to allow the domestic partners of Department Foreign Service personnel to qualify as family members for a variety of benefits and allowances. Where appropriate, this extension of benefits and allowances will apply to the children of domestic partners as well. To qualify for these benefits and allowances, an employee must file an affidavit identifying his or her domestic partner and certifying to certain eligibility requirements that will be set forth in the FAM.



The Department of State intends to provide the following additional benefits and allowances for declared domestic partners of eligible employees serving overseas:


·         Diplomatic passports,


·         Inclusion on employee travel orders to and from posts abroad,


·         Shipment of household effects,


·         Inclusion in family size calculations for the purpose of making housing allocations,


·         Family member preference for employment at posts abroad,


·         Use of medical facilities at posts abroad,


·         Medical evacuation from posts abroad,


·         Emergency travel for the partners to visit gravely ill or injured employees,


·         Inclusion as family members for emergency evacuation from posts abroad,


·         Subsistence payments related to emergency evacuation from posts abroad,


·         Inclusion in calculations of payments of overseas differentials and allowances (e.g., payment for quarters, cost of living, and other allowances),
·         Representation expenses, and


·         Training at the Foreign Service Institute.



The Department also will work with our inter-agency partners and host country governments to provide domestic partners with diplomatic visas, appropriate diplomatic and consular privileges and immunities, and authorization to work in the local economy abroad. 



We look forward to implementing these changes.

Spring semester round-up of professors moving to Administration - updated May 25

Wingnuts continue their efforts to block confirmation of Dawn Johnsen and Harold Koh, who have become victims of a delusional and insane smear campaign. Enough already! Where the hell is Al Franken?

Meanwhile, the spring semester has ended with this latest round of professorial appointments:

ROSA BROOKS (Georgetown), an expert in international human rights, will become senior adviser to the Undersecretary of Defense for Policy.

TINO CUELLAR (Stanford) is serving as Special Assistant to the President for Justice and Regulatory Policy, in the White House Domestic Policy Council; his primary fields are criminal justice, civil rights, and regulatory policy.

NESTOR DAVIDSON (Colorado) is taking the post of Principal Deputy General Counsel at HUD.

LARRY ECHOHAWK (BYU) will be the new head of the Bureau of Indian Affairs.

(NEW) CHRIS SCHROEDER (Duke) will become the Assistant AG in charge of the Office of Legal Policy at Justice.

DAVID VLADECK (Georgetown) will direct the Bureau of Consumer Protection at the Federal Trade Commission.

PHIL WEISER (Colorado) will be Deputy Assistant Attorney General for the Antitrust Division.

Previously announced new jobs for law professors after the jump. I'll do the next round-up at the end of the summer.

Project on Harvey Milk inappropriate for California sixth graders

UPDATE: The ACLU has announced that the school has apologized, allowed the presentation to be made to the class, and agreed to rectify its misinterpretation of California's policy on family life/sex education.

On the eve of the California Supreme Court's decision on the challenge to Prop 8, another example has emerged of the ease with which any gay-positive speech can become tainted as sexually inappropriate. In Ramona, CA, a school principal refused to allow a sixth grader to do the in-class presentation portion of a research project because her topic was the life of Harvey Milk.

According to the ACLU, which is representing the girl and her mother:

The assignment, part of an independent research project class, was originally to prepare a written report on any topic.  Natalie Jones, who was inspired to write about Harvey Milk after watching Sean Penn win an Academy Award for portraying him, got a score of 49 out of a possible 50 points on the written report.  Students were then told to make PowerPoint presentations about their reports, which they would show to other students in the class.  The day before Natalie was to give her 12-page presentation she was called into the principal’s office and told she couldn’t do so. 
 
When Bonnie Jones spoke with the superintendent about the presentation, he said Natalie couldn’t give her presentation because of a district board policy on “Family Life/Sex Education.”  A few days later, the school sent letters to parents of students in the class, explaining that her presentation would be held during a lunch recess on May 8, and that students could only attend if they had parental permission.

The principal's decision was based on the school district's policy on "family life/sex education," which provides:

“(P)arents/guardians shall be notified in writing about any instruction in which human reproductive organs and their functions, processes, or sexually transmitted diseases are described, illustrated, or discussed.  In addition, before any instruction on family life, human sexuality, AIDS or sexually transmitted diseases is given, the parent/guardian shall be provided with written notice explaining that the instruction will be given…”

So I guess the story of the early stages of a civil rights movement, as recounted by a 12-year-old girl, falls into the category of "human sexuality" if the movement in question is for lgbt rights. The principal's panicky reaction, absurd as it is, illustrates the fear that children will be "taught" homosexuality, a fear that drove the most effective Yes on 8 ads in last fall's campaign.

And the irony, of course, is that this school project had nothing to do with marriage, and the outcome of the Prop 8 decision tomorrow will have no bearing, either way, on the ACLU's challenge to it.

Wednesday night in DC: Economic inequality, the downturn, and impact on the lgbt community

On Wednesday night, the Williams Institute is offering a CLE program on issues related to the current economy and its impact on LGBT people.  The event will begin with the CLE at 5:30 pm at the Finnish Embassy, at 3301 Mass Ave, followed by a reception. Speakers will include Lee Badgett, an economist who is the Research Director at Williams; Joseph Kapp, financial planner with Lincoln Financial Advisors; Diane Fuchs, partner at Womble, Carlyle Sandridge & Rice; and yours truly. It's a great way to satisfy your CLE requirements.  Tickets available here.

New Pew poll: Independents surge, opinion on gay marriage shows jagged line

A new Pew Research Center report on political values and core attitudes - which Pew has been monitoring for 22 years - shows that more people now self-identify as Independents than as Democrats or Republicans. Over the last six years, most of the new Independents have been refugees from the Republican Party, but in the last five months, both the Dems and the Repubs have dropped by roughly equal amounts, while the number of persons identifying as Independent has surged by almost one-third.

On gay marriage, although there is endless media commentary about the steady upward march in public support for marriage equality, the Pew numbers tell a story of much greater volatility:

The opposition is broadly trending downward, although Pew's numbers show that a smaller percentage of Americans opposed gay marriage last year and even in 2006 than do today.

The same jagged up and down line, though trending generally upward, characterizes the percentage who favor marriage equality. Again, the number in support this year is not the highest in the last 13 years, and in fact shows a small drop from last year. According to Pew, the same percentage of Americans supported gay marriage in 2001 as do today.

Although these are national data and not specific to California, they at least hint at why going back to the ballot box for a repeal of Prop 8 in 2010 - if it happens - is going to be dicey.  Maybe the numbers trend in California is completely different - that's possible, although I doubt it - but there is no sign of voters' remorse in these data.

Fidel Castro's niece leads gay rights rally in Havana

Sweet.  From the SF Chronicle:

President Raul Castro's daughter led hundreds of Cuban gays in a street dance last week to draw attention to gay rights on the island.

Participants formed a carnival-style conga line around two city blocks to the beat of drums, accompanied by costumed stilt-walkers. Events also included educational panels and presentations for books, magazines and CDs about gay rights and sexual diversity.

"We're calling on the Cuban people to participate ... so that the revolution can be deeper and include all the needs of the human being," said Mariela Castro, an outspoken gay rights advocate who directs Cuba's officially sanctioned Sex Education Center.