News from the LGBT Bar Association Conference

I’m attending this year’s Lavender Law conference, the annual gathering of the LGBT bar association — along with a large contingent of law students, as well as lawyers and judges. I participated in two panels, one on the complicated gender issues that arise in same-sex families, and the other on the impact of the extension of legal marital rules on lesbian and gay couples. The gender panel addressed the rarely-studied dynamics that often arise from the gender of the partners, either male, female or transgender, in the formation or dissolution of the couple’s relationship. The marriage panel explored how the new rules are playing out in the marriage-recognition states of New Jersey, Massachusetts and California, especially as they shape the dissolution processes of these relationships.

The conference panels included discussions of new parenting issues, the challenges facing LGBT immigrants and refugees, the role of social science findings in anti-discrimination litigation, and the latest news on the Don’t Ask Don’t Tell lawsuits. The larger plenary sessions addressed the current “mixed bag” status of the Obama Administration’s policies on LGBT issues, and the broader questions about the marriage movement.

But apart from the great legal insights and thought-provoking discussions, the most impressive aspect of the gathering is the wonderful diversity of young students and attorneys — in so many shapes and stripes and professional goals! Seeing this dynamic group of LGBT law students and emerging law professionals from all over the United States is a terrific inspiration, giving me confidence that whatever the particular legal issues that may emerge over the coming decades, there will be an enthusiastic cadre of lawyers ready to take up the causes and help our community.

Is There a Gay Marriage Groundswell?

This week the New York TImes reported that there is a “groundswell” of support for same-sex marriage equality, citing a series of recent polls that show that support for marriage equality has topped 50% in approximately twenty states. This is very significant, for two reasons.

First, the New York Times is “the” definitive paper in this county, and whenever they make this sort of announcement it has a way of becoming the accepted story — and that is a good thing. Even if they have pushed the interpretation of the polling data a bit, their overall conclusion is fundamentally correct. Support for marriage equality has finally tipped over 50% in many recent polls, and that is a dramatic difference since the early 1990s.

Second, even if the polling data is somewhat uncertain, there is a noticeable trend here that is not easily discounted. The results indicate that in most of the states where marriage has been legalized, popular support for gay marriage increases, rather than decreasing – thus undermining any notion that there is a long-term backlash when courts open the door to lesbians and gay men marrying. And, the figures confirm that there is a broad geographic divide on this issue, with the coastal states most in support of marriage equality, and the western, central and southern states falling behind — but still, in advance of where they were 15 years ago.

If these trends continue, we can look forward to a new decade of openness on this issue — which should definitely translate into positive legislative and legal outcomes.

Appeals Court Imposes Stay on California Marriages

Acting swiftly and decisively, the federal appellate court issued a ruling today reversing Judge’s Walker’s decision on the “stay” of his Proposition 8 ruling. As a result, no marriages of lesbian or gay couples will take place until after the 9th Circuit Court of Appeals has ruled, and most likely, not until the United States Supreme rules (if it decides to take the case). While this will be a disappointment to those who were planning their weddings, it is no surprise — and should not be viewed as an indication of how the court will rule on the substantive decision.

There were two other aspects of the court’s ruling that warrant attention: first, they issued an expedited briefing schedule, with a hearing in mid-December and tight deadlines for submission of appellate briefs; and second, they specifically asked the appellants to address the issue of whether they have proper standing to file this appeal. That indicates that the court wants to resolve the case quickly, and also shows that they are concerned about this issue of standing.

It’s unlikely anything will happen in this case until the court issues its ruling until early 2011.

Stay Lifted in Proposition 8 Case — As Of Next Week

Judge Walker formally denied the request of the proponents of Proposition 8 for a “stay” of his ruling on same-sex marriage, thus allowing marriages of lesbian and gay couples to proceed. However, at the same time he deferred the implementation of this ruling for a week, to allow the proponents to appeal this decision to the Ninth Circuit Court of Appeals or, if that is not successful, to the U.S. Supreme Court. Therefore, there will be no marriages in California until after those courts rule on the stay issue, some time before August 18th.

What is most interesting about this ruling is the primary reason Judge Walker cited in his decision. Apart from his belief that the proponents did a lousy job at trial and are not likely to win on appeal, he believes that there’s a strong likelihood that the proponents will not even be allowed to pursue an appeal! The reason for this is that the proponents were not the “named” defendants in the case — the State of California was the prime defendant, since it was a challenge to a state law. Now that the Governor and the Attorney General have stated that they do not intend to appeal Judge Walker’s decision, technically there is no “defendant” wishing to pursue an appeal. According to federal law, it isn’t so clear if an intervening proponent has the right to file an appeal. And if they can’t file an appeal they can’t challenge today’s order.

Most observers predicted that the stay would be granted, and so the issue of standing on appeal would not be addressed for a few months. But by ruling as he has, Judge Walker has forced the appellate court to consider this issue now. The appellate judges can uphold the decision to allow marriages to proceed, or they can reverse the decision. Moreover, they don’t need to reach their decision by next week, as they can extend the stay for a few weeks to consider the decision.

One sweet note — in response to the proponents concern that allowing marriages to happen would create confusion on behalf of the married couples, Judge Walker remarked that he didn’t think any of the proponents were likely to marry a same-sex spouse, and so they didn’t have anything to worry about !

Stay tuned — it’s going to be a fascinating journey!

A Landmark Decision for a Landmark Case

Judge Vaughn Walker has issued his opinion in the Proposition 8 California same-sex marriage case, and it is truly monumental, both in scope and doctrine. The opinion thoroughly summarizes the evidence that was presented in opposition to the constitutional initiative, and it lays out a plentitude of legal conclusions in support of the effort to invalidate the amendment. Judge Walker concludes that the evidence presented by the opponents of Proposition 8 establishes the validity of their position, and he debunks the rhetoric and the flimsy evidence and arguments raised by those who seek to relegate same-sex couples to domestic partnership registration.
There are several aspects to the decision that are especially worth noting:
1. Judge Walker treats Prop 8 as just another form of law, without giving any special deference to it as a constitutional initiative resulting from a ballot box vote. The California Supreme Court was quite deferential to “the voters,” whereas this court concludes that if the law is unconstitutional, it doesn’t matter how it came into existence.
2. The opinion rests on both due process and equal protection grounds, and concludes that the law is based entirely on unreasonable premises. Thus, it is invalid — whether or not the court uses a low level or a high level of scrutiny.
3. The opinion devotes considerable attention to the underlying social issue of gender in marriage, concluding that gender roles no longer play any function in marriage, such that distinguishing between opposite-sex and same-sex couples makes no sense at all. Indeed, the Judge describes marriage as a union of equals, saying that “gender no longer forms an essential part of marriage.”
4. The opinion’s conclusion is not limited to the particular history of the California marriage equality battle — and so if it is upheld on appeal, it could lead to a nationwide opening up of marriage for lesbian and gay couples.
5. Judge Walker views the domestic partnership registration primarily as a vehicle for relegating lesbian and gay male couples to a second class status, and thus insufficient, even if it offers all of the technical benefits of marriage. The opinion talks about the importance of the “social meaning” of marriage, not just its bare legal technicalities.

The decision will certainly be appealed to the Ninth Circuit Court of Appeals, where a three-judge panel will initially make the decision. If enough of the justices say so, that decision will itself be reviewed by a larger panel of justices. Then, the losing side can ask the United States Supreme Court to review the appellate ruling — and that court can accept or decline to review the appeal. The appellate process could take anywhere from one to three years — and so it is possible that Proposition 8 could be reversed by the voters in November 2012, before a final decision is ever rendered.
But even if there is no final legal decision on this case, this ruling and the subsequent appellate rulings are important — both politically and legally — as they articulate the Court’s approach to these highly contested social issues. This is an influential Judge (as it happens, thought to be gay and Republican!).
Let’s hope that the next round of judges are as enlightened as Judge Walker appears to be.