Archive for the ‘Judicial Updates’ Category

Proposition 8 Standing Question Sent to State Court

January 5, 2011

In a procedural move that was hinted at during the recent oral arguments at the 9th Circuit Court of Appeals on the Proposition 8 appeal, the “standing” question has been referred to the California Supreme Court. The federal Judges have acknowledged that because the state officials have declined to appeal Judge Walker’s ruling tossing out Proposition 8, the appeal can’t go forward unless the proponents of Prop 8 are allowed to pursue their own appeal. Interestingly, things would gone been very differently had the Republicans won the governor’s or attorney general’s race, as their candidates had said they would pursue the appeal. Instead, with the Democratic victory for both positions, the question of standing remains a threshold question for the Court of Appeals. Until they decide that the proponents have standing, they can’t rule one way or the other on the validity of Proposition 8 – and if they can’t issue a ruling then Judge Walker’s wonderful decision would be the final one.

The federal court could have answered the standing question on its own, even though it’s a question of state law, but instead, they have asked the California Supreme Court to tell them whether they think the proponents have the right to pursue an appeal of Judge Walker’s decision. The California justices have the option of declining the request or answering the question — and if they agree to answer it then they will ask for more briefs from the lawyers and probably have oral arguments on the issue. Chances are they will take up the question, and this will delay the case for as long as a year. Then, if they rule that the proponents have standing the case will go back to the federal court for a ruling on the substantive aspects of the appeal. If they refuse to take up the question it will be up to the federal judges to make the ruling.

There are two political angles to this recent turn of events that warrant particular attention. First, most progressive groups want to see an expanded approach to standing, so that political groups can pursue appeals regarding their initiatives. Thus, the effort to prevent the proponents of Prop 8 from pursuing an appeal runs counter to this broader political approach. Second, this procedural delay all but guarantees that the case will not be decided by November 2012, when there will probably be a new ballot initiative to repeal Proposition 8. If that repeal is successful the legal case will become moot, and so we will never know how the United Supreme Court would rule on these issues – which is fine by me!

Harsh North Carolina Ruling on Parentage Rights

December 23, 2010

The North Carolina Supreme Court this week issued a decisive ruling in the contested issue of second parent adoptions — most of which have been obtained by lesbian couples. The court ruled that no such procedures are available legally in North Carolina, and thus the court has invalidated all of the many second-parent adoptions by same-sex couples that were previously approved by trial courts iin that state.

What is particularly painful about this decision is that it is the result of an angry co-parent fighting against her lesbian former partner – and not arising out of a lawsuit brought by straight homophobes. Even more ironic is that the loser in this case is an out lesbian state senator.

As has been the case in about half the states in this country, when a lesbian has a child by artificial reproductive methods (i.e. sperm donor), typically she is the sole legal parent, and the donor is not a legal parent. If she has a partner and they are living in a state that recognizes marriage or domestic partnership, usually they are both legal parents because of the presumptions of parentage. But if they live in a state doesn’t recognize same-sex marriage or other form of legal partnership, the legal procedure for adding her partner as a parent is called a second-parent adoption. Unlike a conventional adoption where one parent is giving up rights to an adoptive parent, in this instance the legal parent does not give up parentage, but rather, a second legal parent is added.

Some states expressly disallow such adoptions, some states expressly allow them, but many (such as North Carolina) haven’t had clear rules. Some local judges granted them, even in the absence of a clear ruling by the legislature or appellate courts — and that is what happened here.

This process has great benefits for the child and the parents — it provides certainty in case of a break-up, and it also provides for Social Security and other benefits for the child from the second parent, and puts the second parent clearly on the hook for child support if there is a dissolution. It’s also the right thing to do.

Many of those kids have been living with their two parents for more than a decade, with everyone believing that the legal status of the parent-child relationship was not in question.

Most state courts facing the same question have approved second-parent adoptions, and in the few states where courts have ruled otherwise (Connecticut and Colorado, for example), the state legislatures quickly fixed the problem by passing new laws authorizing this procedure. However, most observers believe that is not likely to happen, especially because the newly elected members of the legislature of North Carolina are especially conservative.

Thankfully the justices ruled that the non-legal parent in this case (and presumably others like her) would have a right to seek reasonable visitation and even shared custody of her child in the event of a break-up, on the grounds that this would be in the best interest of the child. Thus, the second mom won’t lose her entire relationship with her child. But still, this decision could lead in other instances to a denial of custody and visitation, and it definitely would lead to a loss of other public and private benefits, even after the child is an adult. It also might enable a non-legal parent to escape having to pay child support obligations.

One of the most difficult aspects of this history is that it penalizes those who took a chance, and went to the trouble to obtain a legal judgment that they all felt was fair, permanent and meaningful. Now, a few justices have overturned those rulings.

Now isn’t this the worst example of judicial activism?

Update on the Texas Gay Divorce Cases

December 16, 2010

A Texas Court of Appeal heard the case of the most recent “no divorce for you” ruling, and the details of the argument are worth reviewing. A detailed story can be found at but here are the key points. A judge in Austin granted the lesbian couple (who had married in Massachusetts previously) a divorce in an initial oral ruling, but before the Judge could sign the formal papers the Attorney General intervened. The AG argued that since Texas didn’t recognize same-sex marriage, the local court couldn’t grant a divorce that implicitly recognized the marriage. In this instance the court had not just granted the “status” divorce; he also had ruled on various property and custody matters. To his credit, the trial judge rejected the request for intervention by the AG and upheld the divorce decree.

Now, the AG has appealed, asking the appellate court to toss out the divorce judgment. In a similar case the northern Texas Court of Appeal sided with the AG and denied the couple a right to obtain a Texas divorce. That ruling is not binding on the Austin court, but it is quite likely that one or both of these cases will end up at the Texas Supreme Court.

The consequences of these decisions are quite significant. There are thousands of same-sex couples who traveled out of state to get married, and if they can’t get divorced in their home state one (or both) of them is going to have to relocate to a marriage recognition state to obtain a divorce. This is an enormous burden on couples, leaving them with the equally undesirable option of remaining married to someone they no longer live with. In the end, this problem will only be resolved when same-sex marriage is recognized in every state of the Union. But until then, there is nothing gained by denying someone who wants to exit a same-sex marriage a fully legal divorce.

Proposition 8 Appeal Hearing in San Francisco

December 6, 2010

Today’s hearing on the appeal of the Proposition 8 federal case was quite dramatic — both from a policy and a legal perspective. The first hour of the argument was focused on the “standing” issue — whether or not the proponents of the initiative have a right to pursue this appeal, and the second hour focused on the core legal issues of the decision.

On the standing issue, the judges expressed serious concern over the validity of the appeal, asking whether there were any appellate decisions authorizing a proponent to pursue an appeal, and focusing in particular on whether the Imperial County deputy clerk has the right to appeal (where the state did not file an appeal). Many attorneys thought that once the trial court had allowed the proponents to intervene, they would have the right to appeal the decision — but it turns out this is not the law. And, now that the newly-elected governor and attorney general have both stated they would not support an appeal of Judge Walker’s decision, a favorable ruling on the standing issue could end the case altogether — leaving the trial court decision in effect.

Interestingly, the judges also appeared to be interested in whether or not the trial court’s decision is actually binding outside of Alameda and San Francisco counties, given that this is the region where the case was heard. It was suggested that the decision might not be directly binding on the other counties, but rather, would have to be enforced by the Governor if any county refused to honor the court’s ruling. This is not likely to be a significant matter, however. Rather, the main concern of the court was whether a denial of standing to the proponents would allow the Governor to effectively nullify the initiative, simply by refusing to defend the law in the face of a court challenge.

On the substantive side of the case, the proponents argued that there is no constitutional right to marry, and therefore this situation is not at all comparable to the mixed-race marriage decisions. They also argued that if there is any rational basis to justify the traditional definition of marriage, the court should not have the power to throw out Proposition 8 — and they definitely believe there is a very rational basis, which is the “natural production” of children resulting from heterosexual bonding. Most fundamentally, they argued that the “people” have the right to make the decision, and not a federal court judge.

The judges did not appear impressed with the proponents’ arguments. One judge asked what public policy is furthered by denying gay couples the “word” marriage, when they already have all the rights of marriage, and where the motivation behind the initiative seems to have been based upon bias against a particular group of people. Another judge referred to the United States Supreme case of Roemer, which prevented the state of Colorado from passing an initiative re-instating an anti-gay ordinance.

The Boies-Olsen team did a bang-up job, responding clearly to the judge’s questions and strenuously defending Judge Walker’s decision. They emphasized the Supreme Court’s long history of protecting the right to marry, as a fundamental aspect of our constitutional right to liberty and the pursuit of happiness. Thus, they did not rely solely on the state court’s prior ruling on same-sex marriage, but rather, on the broader federal right of access to marriage for everyone. But some of the judge’s comments suggest that they are more inclined to stick with the state court-related argument, and apply the Roemer case to invalidate Proposition 8 — but only because of the prior state court ruling on same-sex marriage. If this is the case, the ruling would only apply in California, and not in any other state.

The three-judge panel will issue its ruling in the next few months. Then, it is possible that a 11-judge court panel will re-hear the case and issue its own ruling — which then could be appealed to the United States Supreme Court.

State Courts Address Complex Gay Divorce Issues

October 15, 2010

In New York and in Texas, state courts have recently issued controversial rulings arising in gay divorces — one positive, and the other decidedly negative. In the Texas Court of Appeals decision, the court ruled that a couple that had married in Massachusetts and then moved to Texas could not get a divorce in Texas, on the grounds that granting a divorce would, ironically, “give legal effect” to the marriage. In other words, if they don’t think the marriage is valid, they can’t end it! One would think that the hostile court would love to help this couple break up, but no, that would be too dignified. The court overturned the trial court decision, which had granted the divorce and even had gone so far as to rule the Texas marriage ban as unconstitutional.

Unless the Texas Supreme Court reverses the appellate court’s decision, couples in Texas that married elsewhere will have to move to a marriage recognition state (or at least one of them will have to do so) in order to end their marriage. Hopefully the couple can resolve any outstanding financial disputes, as that will make the dissolution process go more smoothly.

Unfortunately Texas is not alone in ruling this way. For this reason, we strongly encourage couples living in non-recognition state to postpone getting married, but instead, take care of their financial and estate planning tasks as an unmarried couple. Not being able to get a divorce can be terribly burdensome on a couple if things go awry, and will prevent either partner from re-marrying until the divorce can be processed.

In New York, by contrast, an enlightened trial court upheld the validity of a paternity judgment from California in a dispute between two men whose relationship had ended, finding that both men were legal parents. The court validated the parentage status of a gay man who had arranged for a surrogate to carry the couple’s child in California, and the man was deemed to be a legal parent of the child — even though the surrogate parenting contract was considered to be against the public policy of the state of New York. What counted here is that the judgment in California was valid — and thus would be honored in New York state.

Good News From the Courts

September 22, 2010

We are witnessing a flurry of positive news from courts across the nation. In Florida, the state Court of Appeals threw out the state’s ban on gay people adopting children — even those children they have been parenting as foster parents. The Florida gay adoption ban has been a dark cloud on the sunshine state, and prior attempts to overturn the ban have been unsuccessful. We’ve seen some similarly good news from courts reviewing the military’s Don’t Ask Don’t Tell policy as well.

There have been strenuous debates for decades amongst gay rights activists, asking whether court litigation is more or less effective than political reform. What is clear is that it is not an either-or proposition, but rather, a “both and” strategy that makes the most sense. The political campaigns serve as educational programs, even when technically unsuccessful. Likewise, a well-reasoned legal decision can change public opinion, as well as legislative votes.

What is most significant about these court victories is that over the past few decades, the judges in many state and federal courts have tended towards increasingly conservative viewpoints. In this context, the positive decisions from the nation’s courts show a meaningful shift in the “center” on LGBT rights. This gives all of us reasons to be hopeful that political change in the right direction is just around the corner as well!

Appeals Court Imposes Stay on California Marriages

August 16, 2010

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

August 12, 2010

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!

Federal Court Rules DOMA Unconstitutional

July 10, 2010

Good news from Massachusetts! The Federal District Court has ruled in two related lawsuits that the provision of the Federal Defense of Marriage Act that precludes federal recognition of valid state same-sex marriages is unconstitutional. One lawsuit was brought by the state of Massachusetts, involving the state’s classifications of couples for benefits purposes, and the other was brought by couples who wanted to obtain some of the federal benefits conferred on married couples. It is most likely that the administration will appeal the decision (even though Obama says he wants DOMA to be repealed) and so the case will make its way through the circuit court of appeals and then, quite possibly, the United State Supreme Court.

Meanwhile, the federal rules will almost certainly remain unchanged while the case is being appealed. And so, it will be several years before we see any real change here. And, it is not at all certain that the trial court’s decision will be upheld on appeal. But still, the decision is of great importance. It shows that at least one judge has concluded that DOMA is unconstitutional — as an improper interference by the federal government into a realm (marriage law) that has traditionally been left to the states. And, it gives greater legal weight to the political efforts to repeal DOMA in Congress. In fact, my hunch is that Congress will repeal DOMA before a final court decision is ever issued — so we may never know what the Supreme Court would have to say about this issue.

Closing Arguments for Proposition 8 Marriage Trial

June 9, 2010

The San Francisco Federal Court will hear closing arguments in the long-delayed same-sex marriage trial on June 16th, and interestingly, the Judge has sent out a list of detailed questions. Take a look at these questions, and you’ll have a valuable glimpse into how the Judge is thinking about these issues. They aren’t easy questions for anyone to answer!

Questions Presented To Plaintiffs:
1. Assume the evidence shows Proposition 8 is not in fact
rationally related to a legitimate state interest. Assume
further the evidence shows voters genuinely but without
evidence believed Proposition 8 was rationally related to a
legitimate interest. Do the voters’ honest beliefs in the
absence of supporting evidence have any bearing on the
constitutionality of Proposition 8? See Hernandez v Robles,
855 NE2d 1, 7-8 (2006) (“In the absence of conclusive
scientific evidence, the Legislature could rationally proceed
on the common-sense premise that children will do best with a
mother and a father in the home.”).
2. What evidence supports a finding that maintaining marriage as an opposite-sex relationship does not afford a rational basis
for Proposition 8?
3. Until very recently, same-sex relationships did not enjoy
legal protection anywhere in the United States. How does this
fact square with plaintiffs’ claim that marriage between
persons of the same sex enjoys the status of a fundamental
right entitled to constitutional protection?
4. What is the import of evidence showing that marriage has
historically been limited to a man and a woman? What evidence
shows that that limitation no longer enjoys constitutional
5. What does the evidence show regarding the intent of the
voters? If the evidence shows that Proposition 8 on its face
and through its consequences distinguishes on the basis of
sexual orientation and sex, of what import is voter intent?
6. What empirical data, if any, supports a finding that legal
recognition of same-sex marriage reduces discrimination
against gays and lesbians?
7. What evidence supports a finding that recognition of same-sex
marriage would afford a permanent – as opposed to a transitory
– benefit to the City and County of San Francisco? To California cities and counties generally?
8. What is the relevance, if any, of data showing that state and local governments would benefit economically if same-sex couples were permitted to marry? Does that relevance depend on the magnitude of the economic benefit?
9. What are the consequences of a permanent injunction against enforcement of Proposition 8? What remedies do plaintiffs propose?
10. Even if enforcement of Proposition 8 were enjoined,
plaintiffs’ marriages would not be recognized under federal
law. Can the court find Proposition 8 to be unconstitutional
without also considering the constitutionality of the federal
Defense of Marriage Act?
11. What evidence supports a finding that the choice of a person of the same sex as a marriage partner partakes of traditionally revered liberties of intimate association and individual autonomy?
12. If the evidence of the involvement of the LDS and Roman
Catholic churches and evangelical ministers supports a finding
that Proposition 8 was an attempt to enforce private morality,
what is the import of that finding?

Questions Presented To Proponents:
1. Assuming a higher level of scrutiny applies to either
plaintiffs’ due process or equal protection claim, what
evidence in the record shows that Proposition 8 is
substantially related to an important government interest?
Narrowly tailored to a compelling government interest?
2. Aside from the testimony of Mr Blankenhorn, what evidence in the record supports a finding that same-sex marriage has or could have negative social consequences? What does the evidence show the magnitude of these consequences to be?
3. The court has reserved ruling on plaintiffs’ motion to exclude Mr Blankenhorn’s testimony. If the motion is granted, is there any other evidence to support a finding that Proposition 8 advances a legitimate governmental interest?
4. Why should the court assume that the deinstitutionalization of
marriage is a negative consequence?
5. What evidence in the record shows that same-sex marriage is a
drastic or far-reaching change to the institution of marriage?
6. What evidence in the record shows that same-sex couples are
differently situated from opposite-sex couples where at least
one partner is infertile?
7. Assume the evidence shows that children do best when raised by their married, biological mother and father. Assume further the court concludes it is in the state’s interest to encourage children to be raised by their married biological mother and father where possible. What evidence if any shows that Proposition 8 furthers this state interest?
8. Do California’s laws permitting same-sex couples to raise and adopt children undermine any conclusion that encouraging children to be raised by a married mother and father is a legitimate state interest?
9. How does the Supreme Court’s holding in Michael H v Gerald D, 491 US 110 (1989) square with an emphasis on the importance of a biological connection between parents and their children?
10. Assume the evidence shows that sexual orientation is socially constructed. Assume further the evidence shows Proposition 8 assumes the existence of sexual orientation as a stable category. What bearing if any do these facts have on the constitutionality of Proposition 8?
11. Why is legislating based on moral disapproval of homosexuality not tantamount to discrimination? See Doc #605 at 11 (“But sincerely held moral or religious views that require acceptance and love of gay people, while disapproving certain aspects of their conduct, are not tantamount to discrimination.”). What evidence in the record shows that a
belief based in morality cannot also be discriminatory? If that moral point of view is not held and is disputed by a small but significant minority of the community, should not an effort to enact that moral point of view into a state constitution be deemed a violation of equal protection?
12. What harm do proponents face if an injunction against the
enforcement of Proposition 8 is issued?

Questions Presented To Plaintiffs and Proponents:
1. What party bears the burden of proof on plaintiffs’ claims?
Under what standard of review is the evidence considered?
2. Does the existence of a debate inform whether the existence of a rational basis supporting Proposition 8 is “debatable” or “arguable” under the Equal Protection Clause? See Minnesota v Clover Leaf Creamery Co, 449 US 456, 469 (1981); FCC v Beach Communications, Inc, 508 US 305, 320 (1993).
3. What does the evidence show the difference to be between gays and lesbians, on the one hand, and heterosexuals on the other? Is that difference one which the government “may legitimately take into account” when making legislative classifications?
See City of Cleburne v Cleburne Living Center, 473 US 432, 446 (1985).
4. What does the evidence show the definition (or definitions) of marriage to be? How does Professor Cott’s proposed definition of marriage fit within Mr Blankenhorn’s testimony that competing definitions of marriage are either focused on children or focused on spousal affection? See Cott, Tr 201:9- 14 and 222:13-17; Blankenhorn, Tr 2742:9-18 and 2755:25- 2756:1.
5. What does it mean to have a “choice” in one’s sexual orientation? See
e g Tr 2032:17-22; PX 928 at 37.
6. In order to be rooted in “our Nation’s history, legal
traditions, and practices,” see Washington v Glucksberg, 521
US 702, 710 (1997), is it sufficient that a practice has
existed historically, or need there be an articulable purpose
underlying the practice?
7. If spouses are obligated to one another for mutual support and support of dependents, and if legal spousal obligations have no basis in the gender of the spouse, what purpose does a law requiring that a marital partnership consist of one man and one woman serve?
8. The California Family Code requires that registered domestic partners be treated as spouses. Cal Fam Code § 297.5. Businesses that extend benefits to married spouses in California must extend equal benefits to registered domestic partners. See Koebke v Bernardo Heights Country Club, 36 Cal 4th 824, 846 (2005) (“We interpret [Cal Fam Code § 297.5(f)]
to mean that there shall be no discrimination in the treatment of registered domestic partners and spouses.”). If, under California law, registered domestic partners are to be treated just like married spouses, what purpose is served by differentiating – in name only – between same-sex and opposite-sex unions?
9. What evidence, if any, shows whether infertility has ever been a legal basis for annulment or divorce?
10. How should the failure of the Briggs Initiative (Proposition 6 in 1978) or the LaRouche Initiative (Proposition 64 in 1986) be viewed in determining whether gays and lesbians are politically powerless?
11. What are the constitutional consequences if the evidence shows that sexual orientation is immutable for men but not for women? Must gay men and lesbians be treated identically under the Equal Protection Clause?
12. How many opposite-sex couples have registered as domestic
partners under California law? Are domestic partnerships
between opposite-sex partners or same-sex partners recognized
in other jurisdictions? If appropriate, the parties may rely
on documents subject to judicial notice to answer this question.
13. Do domestic partnerships create legal extended family relationships or in-laws?
14. What does the evidence show regarding the difficulty or ease with which the State of California regulates the current system of opposite-sex and same-sex marriage and opposite-sex and same-sex domestic partnerships?
15. If the court finds Proposition 8 to be unconstitutional, what remedy would “yield to the constitutional expression of the people of California’s will”? See Doc #605 at 18.