Gay Couples Law Blog : Atlanta Same Sex Family Law and Estate Planning Commentary : Gideon Alper : Gay Law, Domestic Partnerships

News broke earlier this week that Chief U.S. District Judge Vaughn Walker, who presided over the Proposition 8 trial, is gay. David Lat over at Above the Law asked whether it matters:

It does.

It's true that the judge had to be either gay or straight--and bias from either orientation would have threatened to color his judgment in crafting the trial record. Just like in any case, it's the judge's job to minimize personal biases.

Still, even if the judge's ruling doesn't affect the ruling in this particular case, it might alter how the public will view the trial. And one of the most important aspects of this trial was publicizing the effect of marriage discrimination and the lack of evidence in how gay marriage harms straight marriage.

That's why the debate surrounding the YouTube broadcasting was such a big deal--public opinion of gay marriage was at stake.

Said one commenter on Above the Law,

The judge is gay? That’s a lose-lose situation for the gay marriage people. If he rules it unconstitutional, opponents will say it’s a biased outcome. If he rules it constitutional, opponents will say ‘even a gay judge doesn’t think your position is valid.

In this way, the Proposition 8 trial now risks lowering, or leaving the same, public support for gay marriage where before it may have increased it.

• Email This
• Print
• Comments (3)
• Trackbacks
• Share Link

Came across a Schoolhouse Rock-type video about how the Supreme Court banned public broadcast of the Proposition 8 trial on YouTube.

It at least has a catchy jingle. Note that while the video says that California is defending Proposition 8, both Governor Schwarzenegger and the attorney general have declined to defend the law. Instead, various political organizations took up the defense.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

Some people ask how it could be constitutional to ban gay marriage when its clearly discriminatory. The answer is that whether a law is constitutional or not doesn't depend on whether or not it discriminates. Instead, it's all about whether the government has a good enough reason for making the law.

For example, often times courts say that affirmative action laws (such as public school policies) are constitutional even though they discriminate. In those cases, courts say that the government has a good enough reason (correcting effects of past discrimination) to discriminate. Certainly, affirmative action negatively affects those races not benefited by the rules, but the laws are nevertheless legal.

That's why in the California Proposition 8 trial, the fight isn't about whether the the law discriminates or even whether the law hurts gay couples wanting to get married. Instead, it's about whether California has a good enough reason to have the law.

What does "good enough" mean?

It depends. There's 3 versions of "good enough" that the district court can use. Which of these the court should use is one of the things that the lawyers argue about. Auto-straddle, a blog covering lesbian legal issues, explains:

With strict scrutiny, Prop 8 lawyers have to demonstrate that the law is narrowly tailored to further a compelling governmental purpose.

With intermediate scrutiny, Prop 8 lawyers have to demonstrate that the law is substantially related to an important governmental purpose.

With just rational basis, [Prop 8 lawyers have] to demonstrate that the law is rationally related to any legitimate governmental purpose.

Strict scrutiny is the hardest one to show, while rational basis is the easiest.

What's a governmental purpose?

Let's take the argument that the reason to ban gay marriage is to promote families that can naturally procreate. If the court chooses the "strict scrutiny" version of "good enough," then lawyers supporting the gay marriage ban would need to show two things:

1. Proposition 8 does very little else except promote naturally procreating families and also actually does promote these kind of families (narrowly tailored)
2. Promoting naturally procreating families is a compelling governmental purpose.

But if the court chooses the "rational basis" version, then the side against gay marriage only needs to show the following:

1. Proposition 8 is rationally related to promoting naturally procreating families. So, it wouldn't have to actually be effective and it could have lots of side effects. They'd just need to make some rational argument that it's related.
2. Promoting naturally procreating families is a legitimate governmental purpose. Note the difference here: the purpose only has to be legitimate--it doesn't have to be a particularly good purpose, and especially not a compelling one.

Putting It All Together

First the court needs to decide which version of "good enough" to use. Once it does, it'll look at each reason for having the gay marriage ban and determine whether it meets that definition of "good enough."

• Email This
• Print
• Comments
• Trackbacks
• Share Link

No matter which way the judge rules in the California Proposition 8 trial, the case will almost certainly be appealed to the 9th Circuit Court of Appeals, and then the Supreme Court.

How would the Supreme Court rule? It's hard to predict because historic political majorities of the Court wouldn't apply.

It's not so simple as dividing up the Court into conservatives and liberals. First let's look at the traditional conservative majority. Usually it falls into two camps:

• Libertarians: "People can do whatever they want--as long as it doesn't cost anything, we don't care."
• Traditional right: "If it's not moral, you can't do it."

When it comes to gay marriage, these two camps will disagree. Libiterians will say that as long as gay couples getting married doesn't cost anything and doesn't affect other people, then it's fine.  But the traditional right won't like gay marriage because they don't think it's moral.

But the historic liberal side doesn't apply to the gay marriage debate either:

• Traditional left: "The government can't restrict personal freedom."
• Liberal subgroup: "The government should prevent people from harming themselves through laws and regulation."

The traditional left will support gay marriage, because they see marriage as a personal freedom and don't think the government should interfere. But a subgroup of liberals will support banning gay marriage if there's any reason that it's bad for society. Or, they'll want to ban gay marriage if they think gay sex is particularly risky (an argument that has much rarer than it was during the AIDS crisis).

So predicting how the Supreme Court would rule on gay marriage isn't as simple as counting the number of conservatives and liberals on the Court. A perfect example lies in the lead attorney for the side in the trial supporting gay marriage: Ted Olsen, a traditional conservative and President Bush's former solicitor general. See his article in a recent Newsweek about the conservative case for gay marriage.

• Email This
• Print
• Comments (2)
• Trackbacks
• Share Link

The Perry v. Schwarzenegger trial was going to be recorded and uploaded to YouTube, but the Supreme Court temporarily prevented that until Wednesday so that it can consider the issue in more depth. Once it does, how will it rule?

To begin with, Judge Walker no longer wants to upload recorded videos of the trial to YouTube; instead, he wants to have a link to the videos placed directly on the court's website.

It comes down to who's supposed to make public broadcasting rules for the federal courts:

• The side wanting to prevent broadcasting of the trial says it should be the U.S. Judicial Conference, which writes the general policies for federal courts.

• The side wanting to allow broadcasting says it should be the Ninth Circuit Judicial Council, which makes policy for the Ninth Circuit, where the trial is being held.

Lyle Denniston suggested over at SCOTUSblog, which tracks Supreme Court developments, that the Supreme Court might even decide that it shouldn't meddle into the trial procedures of federal district courts:

This exchange apparently signals that, when the Supreme Court further considers the issue, it may have to decide the legal status of the Judicial Conference policy, as compared to that of the Ninth Circuit’s Judicial Council, which has authorized the TV “pilot project” to apply to the Prop. 8 trial. And the Justices may also have to consider the scope of their own “supervisory power” over a question of trial procedure in the federal District Courts.

Both sides filed briefs with the Court last night and this morning, so I expect a ruling by tomorrow.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

I've gotten a couple of emails asking where to get just an unbiased summary, but not a full transcript, of what happened at the Perry trial yesterday. This makes sense, as a lot people are busy and don't have time to read full transcript, but still want an unbiased recap.

Shannon Minter, Legal Director of the National Center for Lesbian Rights, provided just that at Pam's House Blend. Here's an excerpt:

From the first moment to the closing bell, Judge Walker moved the proceedings forward at a rapid clip. It was a great day for our side, spiced with some intriguing hints from Judge Walker about how he may be viewing some of the key legal issues in the case. Photo of NCLR's Legal Director Shannon MinterTed Olson and San Francisco Deputy City Attorney Therese Stewart gave eloquent opening statements. Both plaintiff couples presented emotional and moving testimony during their examinations and cross-examinations. And by the end of the day, the plaintiff's first expert witness (the distinguished American history scholar, Professor Nancy Cott) had made significant headway through her testimony, showing that that marriage has never been universally defined as a union of one man and one woman, and that religion has never had any bearing on the legality of a marriage.

Head over to Pam's House Blend for the full summary.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

Although I'll be covering the Perry v. Schwarzenneger trial here, check out these other great resources for commentary and trial recaps:

Proposition 8 and the Right to Marry. A law librarian with over 20 years experience, Michael Ginsborg has blogged on the topic since 2008 and always links to the best posts and news around the internet concerning gay marriage rights and California's Proposition 8.

Law Dork. Chris Geidner's insights on LGBT legal developments are always spot on. He helpfully provides links to trial transcripts and court orders as well.

Prop 8 Trial Tracker. A project by the Courage Campaign, a California marriage equality group, this blog is run by by longtime bloggers Robert Cruickshank and Julia Rosen. Check out their recent post that goes over the names and players in the trial.

Pam's House Blend. While definitely a political site, multiple contributors and readers insure that breaking news is always reported here very quickly. If you want to be the first to read about recent developments, this is the place to go. In fact, they've just added a few things to their blog to make finding breaking news about the trial even easier.

Wall Street Journal Law Blog. If you're looking for in depth legal analysis of the trial, you can't beat the WSJ Law Blog. Don't expect a post on the trial more often than once a day, but do expect for it to be engaging and to come with insightful comments by readers.

• Email This
• Print
• Comments (1)
• Trackbacks
• Share Link

The Supreme Court this morning temporarily stopped the uploading of the Perry v. Schwarzenegger trial to YouTube. The trial will still begin today--it just won't be broadcasted or recorded.

Defenders of the Proposition 8 ban had said that the broadcasting shouldn't be allowed because it would intimidate witnesses at the trial. The Supreme Court said that it needs time to consider the arguments before making deciding whether the court hearing the case should be allowed to upload videos of the trial. Until it makes that decision, the court won't be allowed to.

If you were looking forward to watching the trial on YouTube, don't be discouraged. The Supreme Court's order temporarily stopping the broadcasting doesn't mean that the Court will ultimately disallow it. However, it does mean that the first few days of the trial will be unavailable. Because the Supreme Court's order includes prohibiting cameras in the court room, it's not possible that videos of the trial during this temporarily ban could be uploaded later.

I'll be dissapointed if the Court does decide later that the California federal district court hearing the case can't be recorded and uploaded. The YouTube broadcast would have been a step forward not just for federal gay marriage litigation, but for transparency of our country's judicial process overall.

• Email This
• Print
• Comments (1)
• Trackbacks
• Share Link

Ted Olsen, the famous conservative lawyer for the gay couples in Perry v. Schwarzenegger, laid out what he called the "conservative argument for gay marriage" in this past weekend's Newsweek.

Because conservatives often say that allowing gay marriage would require an activist interpretation of the Constitution, Olsen spent time spelling out why it would not.

The Argument

Olson said that marriage is a Constitutional right:

The United States Supreme Court has repeatedly held that marriage is one of the most fundamental rights that we have as Americans under our Constitution. It is an expression of our desire to create a social partnership, to live and share life's joys and burdens with the person we love, and to form a lasting bond and a social identity. The Supreme Court has said that marriage is a part of the Constitution's protections of liberty, privacy, freedom of association, and spiritual identification. In short, the right to marry helps us to define ourselves and our place in a community. Without it, there can be no true equality under the law.

While the Court traditionally has considered marriage in terms of heterosexual relationships, Olsen said that "the underlying rights and liberties that marriage embodies are not in any way confined to heterosexuals."

So Is That It?

No. Even though the Constitution guarantees equal protection under the law, both state and federal governments are allowed to deny equal protection if they have legitimate reasons for doing so. So what it comes down to is whether the federal government (and California, in regards to Proposition 8) has legitimate reasons for denying equal marriage rights to gay couples.

But Olsen said that the reasons that gay marriage opponents usually give are not legitimate:

• It's tradition. "Simply because something has always been done a certain way does not mean that it must always remain that way. Otherwise we would still have segregated schools and debtors' prisons."

• States need to encourage procreation. "Preventing lesbians and gays from marrying does not cause more heterosexuals to marry and conceive more children. Likewise, allowing gays and lesbians to marry someone of the same sex will not discourage heterosexuals from marrying a person of the opposite sex."

• It threatens the institution of marriage. "I have yet to meet anyone who can explain to me what this means. In what way would allowing same-sex partners to marry diminish the marriages of heterosexual couples?"

Not Everyone Agrees

Despite Olson's argument, some people say that marriage should still be left to the states. So even if a state doesn't have legitimate reasons for disallowing gay marriage, that doesn't mean that the federal government has to . Jonathan Adler, a professor at Case Western Law School, agreed with Olson that marriage would benefit gay families, but said:

I remain deeply skeptical of the constitutional argument.  I am unconvinced the equal protection clause requires states to recognize same-sex marriages, though I believe the federal government should recognize any marriage recognized under state law.

In other words, just because the federal government should recognize gay marriages performed by particular states doesn't mean it has to make all the states recognize them too.

This brings us to Perry v. Schwarzenegger, where defenders of Proposition 8 ban will try to show that California has legitimate reasons for unequal treatment.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

With all the attention yesterday about how Perry v. Schwarzenegger will be the first non-criminal federal trial publicly broadcasted (and on YouTube), it's smart to take some time to go over some basics.

Who's Challenging the Ban?

Perry: Perry is the last name of Kristin Perry, who was denied a marriage license with her partner Sandra Steir. The two join Paul Katami and Jeffrey Zarrillo, who were also denied a license. The court uses the name "Perry" to refer to all four of them. They're challenging Proposition 8, which bans gay marriage, in federal court because they say it violates the U.S. Constitution.

Famous Lawyers: Representing the people challenging the gay marriage ban are two famous lawyers, former U.S. Solicitor General Theodore Olson and trial lawyer David Boies. You may have heard of them--they represented President Bush and Al Gore in the 2000 Supreme Court case that ended up deciding the presidential election.

Who's Defending the Ban?

Schwarzenegger: Although the case name says it's versus Governor Schwarzenegger, the governor isn't actually defending Proposition 8. He said he's neutral. Moreover, the California attorney general agreed that the law should be struck down.

Instead, a bunch of religious and conservative groups have gotten together to defend the ban in the governor's place. The main lawyer for this side is Charles Cooper.

What's a Bench Trial?

A bench trial is mostly just like a jury trial, except that it's in front of a judge. On one hand, this means that the trial might seem more boring, because the lawyers won't have to ham it up for a jury. On the other hand, the lawyers do know that the trial will be made public, so maybe they'll try to make it interesting. The bench trial starts this Monday, January 11th.

What's Each Side Trying to Prove?

In general, the Constitution says that states can't make discriminatory laws unless there's a good enough reason. So Perry's lawyers will try to prove that there isn't a good enough reason for the marriage discrimination, while the lawyers on the other side will try to show why there is.

That's why they're having the bench trial. The trial will first determine what the effects of gay marriage are, such as the effects on children of gay parents and the effects of gay marriage on heterosexual marriages in general. If it finds that gay marriage has negative social effects, the court may decide that the state trying to prevent those effects by banning it is a good enough reason.

What's at Stake?

Because the case is in federal court and is about whether a state gay marriage ban violates the U.S. Constitution, the case could eventually be appealed the the U.S. Supreme Court. If the Supreme Court hears the case, then its decision could affect all state marriage bans, not just California's.

For more information, keep up with the court's special website for the case, or check back here.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

Most changes in gay rights are made in the courts. But none of the federal court cases about gay rights has ever been publicly broadcasted.

Until now. The trial of Perry v. Schwarzenegger, the high profile federal case challenging the constitutionality of California's Proposition 8 ban on gay marriage, will be videotaped and uploaded to YouTube for the world to watch.

Chief U.S. District Judge Vaughn Walker's decision to share the trial via YouTube is important for several reasons:

• Court staff, not a media company, will be controlling the cameras. Media companies had asked the judge for broadcast rights, but the judge preferred this way because it lets the court control the cameras.

• People can watch the trial whenever they want. Most people are busy during the day and don't have time to sit and watch a trial on TV. Also, a lot of times trials have boring parts, and you can't fast forward through a live broadcast. Having the trial on YouTube lets people watch the trial when they have time to, and they can stick to the interesting parts.

• It will be the first non-criminal federal trial ever publicly broadcasted. The Ninth Circuit approved public broadcasting late last year, anticipating that the gay marriage trial would be a great case to try it out.

• It makes the judicial process more transparent. Judge Walker already started this, creating a separate website about the case and setting up a special email announcement list for case updates.

• It sparks online discussion. When a trial is broadcasted on TV, you can't link to it. You can't share a video of it on facebook. Your comments about it are heard by your coworkers and family, not by millions of internet users.

The bench trial begins next week.

• Email This
• Print
• Comments
• Trackbacks
• Share Link