hunter of justice

Perry: Trial may be televised - UPDATED

At the pre-trial conference today in Perry v. Schwarzenegger, Judge Walker told the parties that there is a chance that the trial will be televised.  According to a news report, Judge Walker will wait to decide whether to allow cameras until the Ninth Circuit Judicial Conference issues a pending rule on whether or under what terms civil nonjury trials may be telecast.

The judge also announced that the major issue outstanding before trial - a dispute over release of campaign documents, sought by plaintiffs in discovery - will be decided by the Ninth Circuit en banc. A three-judge panel ruled last week that the documents were protected by the First Amendment's shield for political speech. The appeal is on an expedited schedule.

The trial date is holding: Judge Walker announced that "It will be my plan to proceed beginning at 9 a.m. on Jan. 11."

UPDATE 12/18/09 - The Ninth Circuit Judicial Conference approved a system that will allow televising of nonjury civil trials that are selected by district court judges. This clears the way for Judge Walker to designate the Perry case for being telecast and/or webcast. This one move would magnify many times the impact of the trial, and might turn out to be one of the most important contributions this case will make to the effort to legalize same-sex marriage.

What is the government's interest in preventing gay marriage? Here's your answer -

Many people who don't actually care a great deal one way or the other about gay marriage find it difficult to imagine why they should care. After all, how does allowing same-sex couples to marry affect your typical heterosexual married couple? This is the single hardest question for the opponents of marriage equality to answer and the one on which Jon Stewart etc can most reliably trigger laughter in ridiculing their priggishness.

Well, thank goodness for lawyers. In the pretrial brief filed in Perry v. Schwarzenegger, the defendants had to  identify what they believed to be the legitimate state interests behind Prop 8, the California constitutional amendment that prohibited same-sex marriage. And being the excellent lawyers that they are, they came up with not one, not two, but 47.  Yes, 47. Three more and the whole thing could join AARP.  But I digress.

The first five of the 47 are really the same thing - enforcing "traditional" marriage - although the idea is ingeniously morphed into five variations: "preserving the traditional institution..," "preserving the traditional meaning...," "preserving the traditional purposes..., "preserving the traditional meaning ...as it has been defined in English," [think how many more there could be: in Spanish, in Mandarin, in Farsi,...] and "expressing support for the traditional institution of marriage." Just when did "traditional" get to be a magic word, some kind of unassailable talisman? Oh right, Justice Scalia.

You have to assume that the first five represented their best shot. So who should get credit for using so many words to say the same thing? I see a litigation team meeting, in the conference room of Chuck Cooper's firm, with multiple associates around a table tweaking the language. I see billable hours.

And what of the other 42 justifications - where are the zingers to deploy against the Jon Stewarts of the world? Or even to just answer the "whatever dude" masses of potential turncoat heterosexuals?

Well, I can't do justice to all 42 of them.  So here are my 10 favorites, in Letterman order:

10. Preserving "the prerogative and responsibility of parents to provide for the ethical and moral development and education of their own children" (against those child-snatching gay couples);

9. To avoid "the further, and in some respects the full, de-institutionalization of marriage" (silly me, I thought people wanted to be de-institutionalized);

8. To avoid "publicly replacing the idea that parenting is largely gendered with the idea that parenting is largely unisex" (which is to say, cliches about mom- and dad-ism become harder in same-sex couples);

7. To avoid replacing "the norm of the natural parent with the norm of the legal parent" (have you ever heard of adoption?);

6. To avoid "enshrining the principle that sexual orientation, as opposed to sexual embodiment, is a valid determinant of marriage's structure and meaning" (what the hell is "sexual embodiment"?);

5. To avoid "ending or diluting the public socialization of heterosexual young people into a marriage culture" (sounds like a Moonie wedding);

4. To avoid requiring "that all relevant branches and agencies of government formally replace the idea that marriage centers on opposite-sex bonding and male-female procreation with the idea that marriage is a private relationship between consenting adults" (not that! not consenting adults!);

3. To avoid increasing "the likelihood that bisexual orientation could become a legitimate grounding for a legal entitlement to group marriage" (I knew there was a reason to be bisexual);

2. To avoid contributing to "the belief that marriage in our society is now politicized" (not like in the good old days when women were serfs, for example); and .....

1. To serve the interest of "using different names for different things." (Res ipsa loquitur baby)

Pretty impressive, huh?  As I said, lots of billable hours.

Checking in on Ted and Dave's excellent adventure

A slew of pretrial memoranda have been filed in the last couple of days in Perry v. Schwarzenegger, the mega case challenging the constitutionality of Prop 8 in federal court in San Francisco.  A side issue involving whether the defendants will have to turn over to plaintiffs a series of e/mails and other communications related to the campaign strategy behind passing Prop 8 is pending on appeal before the Ninth Circuit. Judge Walker ordered that the materials be turned over, 2009 WL 3234131 and 2009 WL 3823174, but the panel of Ninth Circuit judges that heard the appeal indicated during oral argument that it was likely to rule that forcing disclosure would violate the First Amendment. Other than that, however, the case seems to be on track for its trial date of January 11. There is a pretrial hearing next Wednesday, the 16th, at which final decisions about the scope and length of the trial may be made.

And what a trial it is going to be -

In comparing the plaintiffs' witness list and the defendants' witness list, it is clear that defendants are sticking to their primary theory of the case, which is that plaintiffs' claim is invalid as a matter of law.  Defendants filed a summary judgment motion on those grounds, which Judge Walker denied.  But it appears from their list of proposed witnesses - which includes several of the same individuals expected to testify on behalf of plaintiffs - that the defendants will seek to score points by aggressive cross-examination of plaintiffs' witnesses (which is why the same witnesses are also on the defendants' list), and that they apparently plan to introduce few experts of their own.  Perhaps because few scholars support their position...

Persons on both plaintiffs' and defendants' lists include Lee Badgett, economics professor at the University of Massachusetts and research director at the Williams Institute at UCLA Law School; George Chauncey, a professor at Yale and leading gay historian;  Nancy Cott, another Yale history professor who has written extensively on the relationship between marriage and citizenship; Greg Herek, a psychology professor at Cal-Davis who has been studying sexual orientation for many years; Michael Lamb,a psychology professor at Cambridge who is an expert on parenting; Ilan Meyer, a professor at the Columbia School of Public Health, who will testify about the psychological stress associated with minority status; Anne Peplau, a UCLA psychology professor who will testify about the effects on individuals of equal marital status; and Gregory Segura, a Stanford political science professor who will testify about the political power or lack thereof of the lgbt minority in the United States.  

I gave a talk today at the Department of Justice, and one of the attorneys there suggested that the Perry trial might rival the Scopes trial (on the theory of evolution) as a critical turning point in public understanding.  I hope he's right, with one caveat: the good guys lost the Scopes case, Clarence Darrow's efforts notwithstanding. Let's hope this one turns out differently.

Will DoMA case change the constitutional standard for sex/o discrimination?

    The issues are now joined in Gill v. OPM, the GLAD case challenging the constitutionality of DoMA.  Unlike the Perry case in California, the decision in Gill will have no effect on state marriage laws.  The plaintiffs are same-sex couples or surviving spouses in Massachusetts, and are arguing that the denial of federal benefits due them is unconstitutional.

    The most important legal issue in the case is the standard of review, the question of how stringently a court will examine the reasonableness of a law that distinguishes between persons based on, in this case, sexual orientation. There is no federal court decision on the books that adopts a heightened level of scrutiny in an Equal Protection Clause analysis of sex/o classifications.  The plaintiffs are also arguing that the denial of federal benefits also infringes their due process/liberty-based right to maintain family relationships.

    In its brief filed two months ago, the Obama Justice Department made its third attempt to defend DoMA without setting off a firestorm of protest from lgbt groups.  The most significant aspects of the latest DoJ brief are what isn't there: the pieces of argument made in an earlier brief filed in a California case. Noxious arguments that discouraging same-sex marriage promoted the interests of children (which DoJ has now specifically disavowed) and that DoMA is justified by the government's interest in preserving scarce resources (ie benefits) and in not using tax funds raised in states that don't recognize same-sex marriages for same-sex couple benefits -- these three assertions have fallen by the wayside.

    What DoJ was not willing to do, however, was to change its argument about the correct standard of review. DoJ asserts that the traditional, highly deferential form of rational basis review applies to sex/o classifications. Under this standard, the challenged law is entitled to a strong presumption of constitutionality; there can be a very loose, inexact fit between the purpose of the law and the means used to achieve it; the court may hypothesize possible purposes that Congress may have had; and the law will be upheld if any conceivable set of facts can provide a rational basis for it.

    What everyone knows but DoJ does not acknowledge is that the Supreme Court did not use this traditional approach to rational basis review in either Romer or Lawrence.  If it had, it would not have reached the results that it did. Unfortunately, the Court also did not identify which standard it was using, leaving lower courts open to essentially limiting the impact of those two decisions to only cases with close-to-identical facts, which will arise only rarely.

    The plaintiffs' brief in Gill argues for heightened scrutiny or, alternatively, that DoMA fails to satisfy even the most deferential form of rational basis review. I don't know what the district court will do, but I think there is an excellent chance that plaintiffs will win before the Court of Appeals for the 1st Circuit, possibly using the standard proposed by Justice O'Connor in her concurrence in Lawrence, which is basically heightened rational basis when there are signs that the challenged law was based on animus toward a group.  DoMA certainly fits the bill.

    Whoever wins on appeal, the other side will seek review in the Supreme Court. Timing is completely impossible to predict, but it seems likely that this case will reach the Supreme Court around 2011 or 2012. And of course there is no way to know exactly who will be on the Court at that time.  But it sure looks possible that this case, too, will effectively be decided by Justice Kennedy.

BDSM case goes to Supreme Court

by guest blogger Harper Jean Tobin

The US Supreme Court recently agreed to hear a case involving the seemingly technical but highly important question of when a criminal conviction can be overturned based on the possibility that it was based on conduct that occurred before any law made it illegal. While the case is already generating headlines, you are not likely to hear a great deal about the Ex Post Facto Clause issue at the heart of the appeal. Instead, media coverage has and presumably will continue to focus on the involvement of both the defendant and the complainant in the case in the BDSM subculture.

The prosecution and conviction in United States v. Marcus shocked many people, not least members of the BDSM (bondage/discipline, domination/submission, and sadomasochism) community, who alternately condemned the defendant for violating the moral standards of the community and worried that they too could be at risk. Glenn Marcus and the woman identified in court records only as Jodi met in 1998 and began what the prosecution conceded was initially a consensual “Master/slave” relationship. A year later, however (the State contended), the relationship became non-consensual because of Marcus’s cruelty and threats, and Jodi was blackmailed into remaining in the relationship by his threats of showing explicit photos of their activities to Jodi’s family. Marcus’s defense vigorously contested the charges, which turned on Jodi’s testimony that she withdrew her consent and only continued the relationship out of fear. Marcus was convicted of forced labor and sex trafficking under the Trafficking Victims Protection Act of 2000, based on Marcus’s sexual and BDSM activities with Jodi and on forcing Jodi to work on maintaining his BDSM website.

The Second Circuit overturned Marcus’s convictions (538 F.3d 97), saying that because the government built its case largely on events that occurred before the TVPA’s enactment, and the trial judge failed to instruct the jury on the matter, it was at least possible that the verdict was based conduct that was not a federal crime when it occurred. (Notably, then-Judge Sonia Sotomayor wrote a concurring opinion suggesting that the relevant circuit precedents were at odds with Supreme Court precedent. Sotomayor has now recused herself from the case.) Accordingly, Marcus was entitled to a new trial, focusing exclusively on whether Marcus coerced and abused Jodi in late 2000 and 2001. The Supreme Court will now decide whether a conviction can be reversed based only on a possibility, as opposed to a likelihood, that it was based on pre-enactment conduct, and thus whether the new trial will proceed.  Although it is the Court’s job to focus on the specific legal questions presented to it, some members of the Court will likely be unable to resist delving into the morality and legality of BDSM. The legal arguments and media coverage of the case, therefore, should be digested with the following in mind:

Marcus’s conviction turned on the question of consent. Marcus’s defense has contended throughout that he has been imprisoned for consensual BDSM activities, and that Jodi, on whose testimony the whole case hinged, brought a false case to prosecutors, long after the fact, because of a dispute over pictures of her on Marcus’s website. By contrast, the prosecution contended that this was a case about a relationship that began consensually but turned into something different and criminal. At the urging of the defense, the court’s jury instructions specified that the terms “physical restraint,” “threats of serious harm,” “force” and “coercion” in the federal statute must be interpreted so as to exclude consensual BDSM conduct. 487 F.Supp.2d 289 (E.D.N.Y. 2007). While the very idea of consensual BDSM, and the distinction between a consensual “Master/slave” relationship and actual captivity and abuse, may have been difficult for jurors to comprehend, the jury convicted Marcus in light of these instructions and the trial court found the evidence sufficient to uphold the verdict in light of this interpretation of the law. Marcus has not challenged the sufficiency of the evidence on appeal, and accordingly the factual question of consent is now closed, as far as the courts are concerned.

The most sensationalized facts of the case actually involved consensual activity. Jury instructions notwithstanding, the prosecution and the press certainly capitalized on every available detail to paint a picture of a depraved abuser. In particular, press accounts emphasized that Marcus whipped Jodi, cut the word “slave” onto her stomach with a knife, shaved her head and branded her with his initial. However, Jodi testified and the government conceded that these activities were consensual, occurring before she moved to Maryland to be closer to Marcus and months before she became afraid and wanted to leave him. While cutting and branding may seem extreme to some, there is nothing inherently abusive about these activities. What shows Marcus to be an abuser and a criminal, if that is what he is, is not the physical things he did but that did them through force and coercion rather than mutual consent.

From the start, Marcus crossed lines within the BDSM community. Though Marcus has been publicly defended by personal friends in the BDSM community, the community as a whole has been ambivalent toward the case. Marcus’s approach to M/s relationships, as detailed in the trial record, included notions of “consensual non-consent” and “no-limits submission” that are controversial within the community. That is, Marcus made it known that once a woman had committed to his service, he would ignore her objections to specific activities or requests to leave. According to the trial record, Marcus used threats of blackmail to manipulate Jodi, and at one point instructed Jodi to entice her sister to visit and to drug her so Marcus could rape her (she refused). Some community members have suggested that the Marcus case may illustrate the legal boundaries of responsible BDSM, with “safe, sane and consensual” BDSM clearly protected by the law, and practitioners of “consensual non-consent” acting at their own risk.

The Supreme Court will hear arguments in United States v. Marcus (case no. 08-1341) early next year.

Breaking: Judge Walker denies summary judgment motion

In an oral order from the bench that followed two hours of argument and a recess, Judge Walker denied the summary judgment motion filed by defenders of Prop 8 in Perry v. Schwarzenegger. In his comments, Judge Walker rejected Baker v. Nelson as precedent, saying that the Perry case was more like Romer. [Thanks to Shannon Minter for the description]

For more flavor, here's the S F Chronicle:

A federal judge refused today to dismiss a lawsuit challenging California's ban on same-sex marriage, setting the stage for the nation's first trial on the constitutionality of a law allowing only opposite-sex couples to wed. Chief U.S. District Judge Vaughn Walker, in a ruling from the bench in San Francisco, said a trial was needed to resolve crucial issues, including whether gays and lesbians are persecuted minorities entitled to judicial protection from discriminatory laws. He has scheduled the trial for January.

Sponsors of Proposition 8, approved by 52 percent of the voters in November, argued that the initiative was clearly constitutional under U.S. Supreme Court precedents, which have never recognized a right to marry a person of the same gender. Plaintiffs in the suit seeking to overturn Prop. 8 - two same-sex couples, a gay-rights organization and the city of San Francisco - contend that the measure's real purpose was to strip a historically persecuted minority group of rights held by the majority. The sponsors contended that Prop. 8 was based on an ages-old tradition of male-female marriage and the ability of opposite-sex couples to conceive children.

But Walker said the Supreme Court, in striking down laws against interracial marriage and by allowing prisoners to marry, had defined the right to wed as fundamental without limiting it to certain groups. Disputes over the state's authority to enshrine traditional marriage in its Constitution, and exclude same-sex couples because of their inability to conceive children, raise factual questions that require a trial, the judge said.

Oral argument today on motion to derail Perry case

It's back to the battle stations today in Perry v. Schwarzenegger, the fancy lawyer face-off in the Northern District of California over the constitutionality of Prop 8. Judge Vaughn Walker will hear arguments on whether the complaint should be dismissed on the ground that there is no viable claim that Prop 8 is unconstitutional. I doubt very much whether the defendants will win their motion for summary judgment, but I do think they will try to persuade the Ninth Circuit to accept the case on appeal immediately if they lose. If they succeed in getting the case moved to the appellate court over this preliminary motion (the general rule is that there is only one appeal, after the entire case has ended in the trial court), then they will have achieved their secondary goal of delaying the case, and lengthening the time that Prop 8 is in effect.

The primary question facing the court is how to interpret Baker v. Nelson, a 1972 case in which the U. S. Supreme Court denied without hearing the appeal from a decision of the Minnesota Supreme Court that two men did not have the right to marry. The plaintiffs were appealing a ruling that the Minnesota law was constitutional under the federal Constitution. The Supreme Court dismissed the appeal "for lack of a substantial federal question"(FLSFQ).  In other words, the Court said in effect, the law on this question is so overwhelming that we can dismiss your arguments summarily, without having to go through the normal process of reading briefs and hearing argument.

Now the defenders of Prop 8 are arguing that Baker is binding precedent, such that only the Supreme Court can reverse it. Unless and until that happens, they argue, lower courts must rule that excluding same-sex couples from marriage is constitutionally unproblematic. This is what conservatives think is their legal ace-in-the-hole in marriage cases. Senator Grassley used it as a way to try to trap then nominee Sonia Sotomayor in her confirmation hearings. She initially responded that she did not recall Baker, and said that she would answer his question the following day. When she did respond, she said that she could not comment on whether Baker settled the question of whether marriage exclusions were constitutional because the precedential effect of a dismissal FLSFQ was itself a unsettled question on which she might have to rule as a Justice. (nice move) There was a bit of irony in having the Baker question come from a senator whose own state (Iowa) had legalized same-sex marriages, but hey - what's a little inconsistency among cronies.

In their opposition to summary judgment, plaintiffs are making two arguments that I think will carry the day.  The first is that a dismissal FLSFQ is binding only as to the precise issues presented in the earlier case, and the theory of the Baker appeal was that the Minnesota marriage law discriminated based on sex, which is not a claim in Perry. The second is that the import of such a dismissal is eroded when subsequent doctrinal developments undermine the legal basis for it, which has certainly occurred as a result of Romer v. Evans and Lawrence v. Texas.

However, even if Judge Walker rejects the argument that Baker predetermines his ruling in Perry, I would bet that the defendants will seek an immediate appeal, and use that move to delay the case.  It is already starting to seem unlikely that the parties in Perry will actually be ready for trial by January 14, the date initially set.

Meanwhile, lurking in the background is another issue that the judge could ask the parties about tomorrow, even though it is not calendared. The defendants are asking the court to stay further discovery (motion here) while they appeal an order that directed them to turn over information concerning the strategies and tactics used by Prop 8 proponents during the campaign. They argue that the forced exposure of these internal documents infringes the First Amendment, because it will chill expression in future ballot campaigns. I don't think the defendants have much chance with this motion either, but the outlines of an overarching strategy for delay are pretty easy to discern.

Court dismisses case brought by partner denied hospital visitation

In a case with heart-wrenching facts, the federal district court in Miami has ruled that Jackson Memorial Hospital violated no duties of care in denying visitation to the partner and children of a patient who lay dying and in largely ignoring their requests for updates as to the patient's status. In Langbehn v Jackson Memorial Hospital, the court held that Janice Langbehn, who furnished a copy of her health care power of attorney to hospital staff shortly after her partner Lisa Pond was admitted, had no basis to recover in tort for the way that she was treated during the eight hours she spent in the trauma center [ER] waiting area. 

The court accorded no weight to proof of bias behind why Langbehn was treated as she was, and instead acknowledged only a narrow potential zone of liability for situations in which the health care surrogate could show that the denials of information or visitation create medical risk for the patient or that the surrogate would have made different decisions regarding care had she been more fully informed.

Lambda, which represents Langbehn, describes the facts as follows:

While on a family cruise leaving from Miami, Lisa Pond, a healthy 39 year-old, suddenly collapsed. She was rushed to Miami's Jackson Memorial Hospital with her partner Janice and three children following close behind. There, the hospital refused to accept information from Janice about her partner's medical history. Janice was informed that she was in an anti-gay city and state, and she could expect to receive no information or acknowledgment as Lisa's partner or family. A doctor finally spoke with Janice telling her that there was no chance of recovery. Other than one five minute visit that was arranged by a Catholic priest at Janice's request to perform last rites, and despite the doctor's acknowledgment that no medical reason existed to prevent visitation, neither Janice — who provided the hospital with a medical Power of Attorney document — nor their children were allowed to see Lisa until nearly eight hours after their arrival. Soon after Lisa's death, Janice tried to get her death certificate in order to get life insurance and Social Security benefits for their children. She was denied both by the State of Florida and the Dade County Medical Examiner.

The court agreed that the hospital had a duty to inform Langbehn about Pond's condition and to allow her, as the surrogate, to make decisions. However, it found that this duty was not breached because doctors consulted with Langbehn twice (during the eight hours), including once when they sought her permission to use a brain monitor. Because there was no medical need, as determined by the physicians, to provide additional information to Langbehn, the court ruled that the hospital staff had no duty to do so. Further, the court held that the duty to provide any information ceased after last rites were administered because there were no further medical decisions to be made.

The court's reasoning was similarly strained as to visitation. Staff in the ER where Pond was initially taken repeatedly refused Langbehn's requests to see Pond, despite one doctor's statement that there was no medical reason for Pond's family not to be with her. The sole exception was when last rites were administered. Seven hours after she was admitted, Pond was transferred to a non-trauma room in a different part of the hospital, but Langbehn was not told. An hour later, Pond's sister arrived. Hospital staff treated the sister as a legitimate relative, and informed her of Pond's transfer. Together with the sister, Langbehn and the children were then allowed visitation with Pond until she died.

On these facts, the court found no liability because "doctors at a trauma unit do not have a freestanding legal duty, untethered to informed consent..., to allow visitation with a patient who is in critical condition and undergoing treatment ... or to allow visitation with a terminal patient ... who is going to be transferred to a regular room where visitation will be permitted...[D]ecisions as to visitation must be left to the medical personnel in charge of the patient..."

In a similar case, the Washington Court of Appeals ruled that a patient's life partner could sue for outrage and negligent infliction of emotional distress for having been excluded from the patient's room for long periods the night before her death.  Reed v. ANM Healthcare, 147 Wash. App. 1044 (2008). There the physicians had allowed visitation, but a nurse countermanded the order.  The judge distinguished the facts in the Florida case because it was the physicians who barred the visitation that Langbehn sought.

At the very end of his opinion, Judge Jordan noted that "the defendants' lack of sensitivity and inattention" to the plaintiffs "caused them needless distress...[Defendants' actions] exhibited a lack of compassion and was unbecoming of a renowned trauma center...Unfortunately, no relief is available..."

In this case, tragic facts made very bad law, although the public education value of the ruling will probably be enormous. Not only should Lambda appeal, but Florida legislators should swiftly enact provisions that clearly prohibit this kind of conduct.

Defenders of Prop 8 seek to win Perry case without trial

The defendants in Perry v. Schwarzenegger have filed a motion for summary judgment in which they seek a ruling that, notwithstanding any factual disputes, there should be no trial because controlling precedents compel a ruling that Prop 8 is constitutional.

A summary judgment motion is a completely predictable move by defendants - try to get the plaintiff's case dismissed before you have to spend any time or money in discovery or trial. What is unusual is that in Perry, the judge has repeatedly demanded that the parties create a full factual record. (See this earlier post, or just click on the category "Perry  lawsuit" to get the background.) Despite that, though, this motion is the logical next step for defendants who have argued from the beginning that the constitutional challenge brought by the Ted Olson/David Boies team is, literally, groundless.

The motion is 117 pages long, so at this point I will just summarize the main points on which the defendants are relying, and add a little commentary:

> That the Supreme Court has foreclosed the question of whether there is a constitutional right for same-sex couples to marry by its dismissal of an appeal from one of the earliest marriage challenges - in Minnesota in 1973 - in a case called Baker v. Nelson. More in a future post about why this is a bogus argument, but for now suffice it to say that one or two things about the law have changed in the last 36 years, and the precedential weight of that form of dismissal is not entirely clear in any event.

> That there is no fundamental right to marry for same-sex couples because, under Washington v. Glucksberg, the test for such a right is whether it is grounded in history, and the right to "same sex marriage" isn't.  But then, of course, the right to marry is.

> That there should be no heightened scrutiny for sexual orientation classifications because two criteria for such scrutiny are not met: sexual orientation is not immutable and gay people wield "substantial political power." And that these two assertions are not only correct but beyond reasonable dispute? - this is a hornet's nest for both sides.

> That even under rational basis review, California voters had good reasons to enact Prop 8, including, among others, that "the traditional institution of marriage promotes:...the formation of naturally procreative unions;...stability and responsibility in naturally procreative relationships; [and] the naturally and mutually beneficial bond between parents and their biological children." Nothing new here.

> That Prop 8 is not tainted by animus. You've got to be kidding.

Oral argument on this motion is scheduled for October 14.  Sure wish I could be there ringside - it's going to be quite a show.

New wrinkle in Perry case: conservative group appeals denial of intervention

The Campaign for California Families, which had sought to intervene as additional defenders of Prop 8 in Perry v. Schwarzenegger, has filed a notice that it is appealing the denial of its intervention motion. 

What's afoot here is an intra-movement split on the anti-gay side. CCF is distinguishable from the Yes on 8 campaign (which is defending Prop 8 since the state has declined to do so) primarily because CCF adamantly opposes not only gay marriage, but also domestic partnership laws. The Yes on 8 crew, in other words, are the voices of pragmatism and, in CCF's world view, of too much moderation.

Here's the SF Chronicle report on how Yes on 8 kept CCF out of Strauss v. Horton, the case in which various lgbt groups challenged Prop 8 after its enactment:

"We represent the people who got things done, who got Prop. 8 passed," said Andrew Pugno, general counsel for the Yes on Prop. 8 campaign. "An important part of defending Prop. 8 is eliminating arguments not helpful to our concerns."

Pugno, for example, persuaded the Supreme Court last week to bar the Campaign for California Families from intervening in the court case over the validity of Prop. 8 and the same-sex marriage ban. "That organization [CCF] represents the extreme fringe and is not representative of the coalition that got it passed," Pugno said.

This is pot calling kettle ....

HT - Shannon Minter

What is the difference between sexual orientation discrimination and gender stereotyping?

For most people, much of the time, the association between homosexuality and gender nonconformity is pretty strong, common sense, a no-brainer.  Professor Jeffrey Hirsch (Tennessee Law) noted on the Workplace Law blog that he, like the author of the Wall Street Journal Law Blog, was puzzled by a new Third Circuit decision that drew a sharp line between the two, when in reality the difference is often fuzzy. As the WSJ phrased it:

We found ourselves a bit puzzled by this distinction, which, on first blush, strikes us as a bit arbitrary: If a gay man is fired because he’s acting in conformity with the stereotype of a gay man, he can sue under Title VII. At the same time, if he’s fired because he’s gay, he can’t sue. That struck us as odd.

But if you keep up with Title VII law, the latest ruling is simply another in what is becoming a long line of courts that allow gay (or trans) plaintiffs to assert a claim for discrimination based on sex - which of course is covered by Title VII - when the adverse action turned on the individual's failure to adhere to gendered standards of conduct and appearance.

In Prowel v. Wise Business Forms, Inc., 2009 WL 2634646, the Third Circuit reversed the trial court's dismissal of the gay plaintiff's sex discrimination claim on the ground that Title VII does not cover sexual orientation discrimination.  The facts showed that he had been verbally harassed at work over a significant period of time, including having been repeatedly called "rosebud," "princess" and "fag." The Court of Appeals reasoned that the plaintiff had

adduced evidence of harassment based on gender stereotypes...[I]t is possible that the harassment of Prowel was because of his sexual orientation, not his effeminacy. Nevertheless, this does not vitiate the possibility that Prowel was also harassed for his failure to conform to gender stereotypes...Because both scenarios are possible, the case presents a question of fact for the jury...

Yes, the reasoning is tortured, even silly, but that's the result of there being no explicit prohibition against discrimination based on sexual orientation. A lot of time, energy and money get wasted in cases like Prowel's - of which there are many - because litigants and judges have to weave their way through this logical maze.  The increasing willingness of courts to let these cases proceed to trial is another signal to Congress that it might as well pass ENDA - just make the law what it obviously should be and allow this kind of dispute to be resolved much more efficiently.

6th Circuit upholds religious group's firing of gay employee, but ACLU may have the last laugh

The Sixth Circuit ruled yesterday that firing an employee based on a religiously-inspired conduct rule is not discrimination based on religion. Instead, the court affirmed the dismissal of the openly lesbian plaintiff because it found that she could not show that it was the religious aspect of her conduct that triggered the firing. Pedreira v. Kentucky Baptist Homes for Children, 2009 WL 2707226 (6th Cir.)

There was no question that Alicia Pedreira was fired because of her sexual orientation; the defendant declared that a "homosexual lifestyle is contrary to [its] core values." Pedreira asserted that the KBHC had discriminated against her based on religion, i.e. because she failed to comply with its religious beliefs. The Sixth Circuit rejected that argument, relying on a nominalist understanding of religion as a possible basis for discrimination. "Plaintiff has not alleged any particulars about her religion that would even allow an inference that she was discriminated against on account of her religion or ... her religious differences with KBHC. ... Furthermore, Pedreira does not allege that her sexual orientation is based on her religious beliefs or her lack thereof..."

KBHC's "core values" defense may turn out to be a pyrrhic victory, however.  The ACLU, which represents Pedreira, also included an Establishment Clause claim in the case, alleging that KBHC used Kentucky state funds to promote religion. Although it shot down the religious discrimination claim, the Sixth Circuit found that the plaintiffs had state taxpayer standing in light of the $12.5 million annual state funding of KBHC for the last 10 years.  Several state officials had sought to terminate the contract with KBHC because of concerns about the use of state funds for religious activity, but the legislature responded with a special citation of appreciation for the group/s work.  Meanwhile, the report of an independent reviewer of the program included nearly 300 complaints from youth that KBHC's religious practices were coercive. In a final note, the court ruled that evidence concerning KBHC's employment policies would be relevant to the determination of whether it was using public funds to promote religion.

The upshot of the case (so far, since the Establishment Clause portion of it will continue on remand) is that a religiously-identified social services organization can fire lgbt employees, an outcome that ENDA - with its broad religious exemption - likely will not change. Although it relates to a different branch of law, the decision essentially leaves KBHC-like groups in the same posture as the Boy Scouts vis-a-vis anti-discrimination issues. In my view, the Establishment Clause questions raised by Pedreira are at least equally important, although that claim will provide no job remedy for the plaintiff.

LGBT groups denied intervention in Perry case

Judge Vaughn Walker has denied the motion to intervene filed jointly by the ACLU, Lambda and NCLR in Perry v. Schwarzenegger. He did allow intervention by the City of San Francisco. His ruling is a major victory for the Olson/Boies team of lawyers for the plaintiffs, who had strenuously opposed intervention by the groups, but acknowledged that the City presented distinctive interests - the impact of Prop 8 on local government - that additional individual and organizational plaintiffs did not.

Attorneys for the lgbt organizations said that they would not appeal the decision.

Judge Walker also set the trial date for January 11, 2010.

The judge behind the scramble in the Perry case

When lawsuits are filed in federal court, judges are assigned by random.  When Ted Olson and David Boies filed the Perry lawsuit challenging Prop 8, they drew Judge Vaughn Walker, a maverick in many senses of the word.  From the SF Chronicle:

Back in 1987, President Ronald Reagan nominated San Francisco corporate lawyer Vaughn Walker as a federal judge and ran into a wave of local opposition. Gay rights advocates were seething about Walker's representation of the U.S. Olympic Committee in a lawsuit that prevented a local group from calling its athletic competition the Gay Olympics. To secure legal fees, he attached a lien to the home of Tom Waddell, the group's AIDS-stricken founder, and removed the lien only after Waddell died.

Other foes cited his membership in the all-male Olympic Club or simply questioned why the city needed another white male pillar of the establishment on the bench. It took nearly two years - and two renominations by Reagan's successor, George H.W. Bush - for the Senate to confirm him.

Times have changed since then, and perhaps Walker has, too. Or perhaps, as some of his supporters maintained, the big-firm lawyer who was merely following his clients' orders would look much different when he was a judge issuing his own orders.

Few would have predicted that Walker would be the judge who provided life support for suits challenging President George W. Bush's wiretapping program. Or that he would advocate decriminalization of drugs.

Walker, now the chief judge of the U.S. judicial district in San Francisco, is also the jurist who will hear the federal lawsuit over Proposition 8.... "I couldn't think of a better guy to hear it," said Terence Hallinan, the San Francisco lawyer and former district attorney who as a city supervisor spoke out against Walker's court nomination in 1988. "He's independent, he's smart and he's unpredictable. ...He doesn't think the government should be sticking their nose into people's business any more than necessary."

Admiration for Walker from the left isn't universal. Some advocates of anti-logging protesters whose eyes were swabbed with liquid pepper spray by Humboldt County officers during 1997 sit-ins haven't forgiven him for his handling of their damage suit.

After a jury deadlocked in 1998, Walker dismissed the case, saying no reasonable juror could have found that the officers used excessive force. When an appeals court reinstated the suit, Walker ordered the retrial moved from San Francisco to Eureka. The court overruled him again, noting the North Coast community's strong ties to the logging industry, and removed Walker from the case, which was later settled....

Walker, now 65, has described himself as a Vietnam War protester at the University of Michigan who became a Republican at Stanford Law School. He spent 18 years at the blue-chip firm Pillsbury, Madison & Sutro in San Francisco before his judicial appointment. In a 2008 interview with the Daily Journal, a legal newspaper, he said his legal thinking includes a touch of libertarianism. "I do believe that the important values of our republic maximize individual freedom and liberty consistent with the good order of society," he said.

DoJ's new tune on DoMA

The Department of Justice has just filed a new brief in the Smelt case that defends the constitutionality of DoMA, but also states the Obama administration's opposition to DoMA as a policy matter and explicitly repudiates anti-gay arguments based on parenting. It was DoJ's earlier brief in this case that prompted a firestorm of criticism from lgbt advocates.

The new brief continues to argue that sexual orientation classifications are subject to only rational basis review and that Congress was justified in enacting DoMA. So the bottom line defense hasn't changed. (There was never much reason to imagine that DoJ would fail to defend DoMA in court, however, especially in this across-the-board challenge.)

The most powerful and important aspect of this new brief is its categorical statement that there is no rational basis for the arguments in favor of discrimination that are grounded in claims about procreation and child-rearing. (See quotes below)  This puts the federal government on record as to these claims in a way that has never happened before. 

From the brief (emphasis is mine):

Under that deferential [rational basis] standard, this Court should find that Congress could reasonably have concluded that there is a legitimate government interest in maintaining the status quo regarding the distribution of federal benefits in the face of serious and fluid policy differences in and among the states....Under rational basis review, Congress can reasonably take the view that it wishes to wait to see how these issues are resolved at the state level before extending federal benefits to marriages that were not recognized in any state when Congress tied eligibility for those benefits to marital status.

...[T]he government does not contend that there are legitimate government interests in "creating a legal structure that promotes the raising of children by both of their biological parents" or that the government's interest in "responsible procreation" justifies [DoMA]. [Multiple professional groups] have issued policies opposing restrictions on lesbian and gay parenting because they concluded, based on numerous studies, that children raised by gay and lesbian parents are as likely to be well-adjusted as children raised by heterosexual parents...[T]he United States does not believe that DoMA is rationally related to any legitimate government interests in procreation and child-rearing and is therefore not relying upon any such interest to defend DoMA's constitutionality.

In addition, the new brief emphasizes much more than the first one did that plaintiffs' challenge to DoMA can be dismissed solely on jurisdictional and standing grounds, without reaching the merits at all.