In addition to any issues appellants wish to raise on appeal, appellants are directed to include in their opening brief a discussion of why this appeal should not be dismissed for lack of Article III standing.

I haven’t covered this yet, but it is possible that because the state of California refused to defend Prop 8 in court, and the defense was mounted by an outside party, that the 9th circuit might not hear an appeal (which would make Judge Walker final).  This stems from an issue of who has standing to challenge a ruling (the “Article III” reference).  It’s significant that the Court specifically requested a rebuttal to this issue from Prop 8 supporters, as it implies that they consider this to be a real issue.

A good explanation of the issue of standing is available at SCOTUSblog.

While Olson was on Fox, Boies was debating Tony Perkins of the Family Research Council on CBS’s Face the Nation and he called Perkins on his lies and made up studies.

…it’s very easy for the people who want to deprive gay and lesbian citizens of the right to vote [sic] to make all sorts of statements and campaign literature, or in debates where they can’t be cross-examined. But when they come into court and they have to support those opinions and they have to defend those opinions under oath and cross-examination, those opinions just melt away. And that’s what happened here. There simply wasn’t any evidence, there weren’t any of those studies. There weren’t any empirical studies. That’s just made up. That’s junk science. It’s easy to say that on television. But a witness stand is a lonely place to lie. And when you come into court you can’t do that.

Not sure why the video is so small, but you can watch the clip full size at CBS.com.

Well, would you like your right to free speech? Would you like Fox’s right to free press put up to a vote and say well, if five states approved it, let’s wait till the other 45 states do? These are fundament constitutional rights. The Bill of Rights guarantees Fox News and you, Chris Wallace, the right to speak.

Via The Wonk Room, here are highlights from the interview.

Our President, our fierce advocate, continued with a game of giving us begrudgingly congratulations in a tepid unemotional and uninspired statement while sending his minions out to make sure the entire country knew that he was against marriage equality. If there was anyone that should sit down and read this opinion it would be this son of an interracial couple who had to go to Supreme Court to obtain marriage equality.

Unfortunately, he didn’t even mention the court case in his two line statement. However, David Axelrod found plenty of time to go on national television to make sure the country knew that Obama was against marriage equality. Then there was the cowardly “nameless source” who said the President would only deal with those actions at the federal level such as benefits and things.

This game has to stop. The President is either with us or against us. If he is neutral, so be it but then stop hurting us by saying over and over how marriage equality is between a man and a women. He should pay close attention to the line in Judge Walker’s decision that says,

“Indeed, the evidence shows Proposition 8 does nothing more than enshrine in the California Constitution the notion that opposite sex couples are superior to same-sex couples. “

The president does oppose same-sex marriage, but he supports equality for gay and lesbian couples, and benefits and other issues, and that has been effectuated in federal agencies under his control. He’s supports civil unions, and that’s been his position throughout. So nothing has changed.

Which is it?  The two ideas are proven to be mutually exclusive.  We’ve seen over and over again (New Jersey being just one example) that civil unions aren’t full equality.  And this attempted doublespeak isn’t cutting it anymore.  People are noticing and it’s frankly not earning him any support he didn’t have before.

As John Aravosis reminds us, Obama once before stated his support for marriage equality, but it was in 1996.  Who’d have thought he would be moving the opposite way of history.  And before saying that he probably privately supports same-sex marriage (something I’m inclined to believe), tell me what good that does.  It would simply mean he doesn’t have the courage of his convictions on an issue that is passing him by.

1) Due Process

The due process argument is one made in both Loving v. Virginia and Lawrence v. Texas.  The legal question here is: Is there a fundamental right (one enshrined or inferred from the actual constitution) that is being violated by governmental action? In Loving the Supreme Court found that there was a fundamental right to Marry, and in Lawrence, the Supreme Court found that the fundamental right of privacy (established in Griswold v. Connecticut) extends to intimate relationships.  (For example, in Roe v. Wade, the Court extended the right of privacy from Griswold to include a woman’s right to choice, Lawrence was did the same for intimate relationships.)  Here, Walker said that Prop 8 violated the fundamental right to marry.

Now, once it was decided that a fundamental right had been violated, the state action must pass strict scrutiny if it is to be upheld as constitutional.  This test is very difficult to pass, and very rarely ever does.  To overcome strict scrutiny, the state has to prove that 1) the state has a compelling interest, 2) that the government action is narrowly tailored as to not infringe on the right as much as possible, and that 3) there are no other better alternatives.  (I’ll explain below but Walker says this law doesn’t even pass rational basis, so here, there is no way it would ever pass strict scrutiny)

2) Equal Protection

The equal protection argument is one that can be found in historically Brown v. Board, but also in Lawrence.  Here the legal question is:  Is there a class of people being discriminated against by a governmental action, and is this class protected? There are three groups which different classes can fall: Suspect Class, Quasi-Suspect Class, and Ordinary Class.

Suspect:

The Supreme Court has found that there are two main groups that fall into this class: race and national origin. Suspect classes are described as those which:

a)  The group has faced historical discrimination;
b)  The basis of the discrimination is on an immutable (unchangeable) characteristic;
c)  They are hard pressed to protect themselves politically; and
d)  The minority is discrete or insular

(As a side note: Just to make clear my perspective, I think that homosexuals are a suspect class because they satisfy each of those characteristics)

Once a class has been labeled suspect, then any action taken by the government must pass Strict Scrutiny (same as above).

Quasi-Suspect:  These classifications (mainly distinctions made based on sex/gender) are based on a class that is almost suspect but where the court has found governmental reasons acceptable for differentiating them because of the immutable characteristic (i.e. the Supreme Court has said that men and women are fundamentally different in their biological make up and therefore sometimes the governmental action does not need to pass strict scrutiny).  This group faces Intermediate Scrutiny.  To overcome intermediate scrutiny the government must show their action 1) furthers and important governmental interest that is 2) in a way that is substantially related.  If you compare that to strict, the government here only needs to further an “important interests” as opposed to a “compelling” one under strict.  At this level the court is unreliable and could go either way.

Ordinary: Ordinary classifications have typically been everyone else: political affiliation and sexual orientation have typically fallen here.  To overcome an ordinary class distinction the government only has to pass a rational basis review.  To succeed, the government only needs to show that it has a legitimate interest (the government has an interest in about everything) and that their action is rationally related to that legitimate interest.  Almost all governmental actions pass this test.

To reiterate:  To put the three levels of review, Strict, Intermediate and Rational basis, in the simplest language:

• Strict = the government better have a damn good reason
• Intermediate = the government better have a good reason
• Rational Basis = the government should probably have a reason for doing what they are doing

THE CATCH:  Making this all the more difficult are two Supreme Court cases: Lawrence v. Texas and Romer v. Evans.  In both of these cases the majority opinion was written by Justice Kennedy (this is important later).  In Romer, the court struck down an anti-gay Colorado law but on rational basis (striking laws down on rational basis is very, very rare). Most notably in that case, and cited by Judge Walker, is that morality cannot be a “legitimate” state interest and therefore laws regulating morality will not survive rational basis.  Walker stated that he felt Prop 8 was a regulation on morality and therefore did not pass rational basis.

Lawrence is difficult because Justice Kennedy was deliberately vague.  Justice Kennedy hinted that homosexuals are an ordinary class, but then used a higher level of scrutiny (something more like intermediate scrutiny) to strike down the Texas sodomy law.  This departure from the ordinary way of looking and reviewing class specific law is now sometimes referred to as “Rational Basis with a Bite”  A lot of legal scholars now disagree which class homosexuals fall under according to Lawrence.  Justice Kennedy would likely say Ordinary if pushed, but his legal reasoning seems to indicate he is playing politics and really would place homosexuals in a Quasi-Suspect class.

And now how this all applies to Walker’s decision:

A lot of legal commentators are reading Walker’s opinion and finding a lot of similarities to what Justice Kennedy has written. It has been suggested that Walker was writing to Kennedy in his opinion.  As far as Due Process, Walker seems to say that a fundamental right has been violated here, thus would require strict scrutiny.  But when discussing Equal Protection, I have read both that Walker classified homosexuals as an Ordinary Class, and as a Suspect Class.  A lot of this debate stems from him saying, I believe they are suspect class, but then applying a rational basis review (ordinary).  This mixing is very similar to what Kennedy did before and I think is what is sparking some of the disagreement as to what Walker is saying.**  Regardless, Walker’s tedious handling of the case and his determinations of fact will make this more difficult to overturn.  All in all it is a big win for the gay community.  Even if (knock on wood) the Supreme Court eventually overturns Walker’s decision, historical opinions like this stick around, and are argued and debated and will continue to influence law for decades.

**My personal belief is that he would like to make a suspect class designation, but the precedent set by Lawrence (the vague classification of homosexuals) would leave his opinion vulnerable to reversal on appeal (because it contradicts existing common law).  He therefore applied to lowest form of review anyway and came out that Prop 8 was unconstitutional.

The parties do not dispute that the right to marry is fundamental. The question presented here is whether plaintiffs seek to exercise the fundamental right to marry; or, because they are couples of the same sex, whether they seek recognition of a new right.

The right to marry has been historically and remains the right to choose a spouse and, with mutual consent, join together and form a household. Race and gender restrictions shaped marriage during eras of race and gender inequality, but such restrictions were never part of the historical core of the institution of marriage. Today, gender is not relevant to the state in determining spouses’ obligations to each other and to their dependents. Relative gender composition aside, same-sex couples are situated identically to opposite-sex couples in terms of their ability to perform the rights and obligations of marriage under California law. Gender no longer forms an essential part of marriage; marriage under law is a union of equals.

Plaintiffs do not seek recognition of a new right. To characterize plaintiffs’ objective as “the right to same-sex marriage” would suggest that plaintiffs seek something different from what opposite-sex couples across the state enjoy — namely, marriage. Rather, plaintiffs ask California to recognize their relationships for what they are: marriages.

1. Marriage is a fundamental right.
2. Depriving gay and lesbian citizens the right to marry harms them and harms their children.
3. Depriving gays and lesbians the right to marry will not help heterosexual marriage.

Here are the other points that are interesting:

• As I mentioned in the previous post, one of the most important points, in the legal sense, is the that fact that Judge Walker clearly stated that a law that differentiates based on sexual orientation requires the most intense level of consideration, but fails to meet even the lowest standard.  In legalese, it requires the standard of strict scrutiny, yet Prop 8 doesn’t even meet the test of rational basis.  My attempt at translating: when laws distinguish between different types of people and are challenged on the basis of the 14th or 5th amendments (as they were in this case), they need to meet a certain standard.  There are three of these tests, the lowest of which is “rational basis” and the highest of which is “strict scrutiny.”  There’s actually a pretty good explanation of both at Wikipedia (strict scrutiny and rational basis).  This nuance is lost on a most layman (admittedly, I fall into this category), but it has a real impact in court according to the feedback I’ve seen from lawyers.
• The other vital element of the ruling is in the “findings of fact.”  When an Appellate Court hears an appeal, there are two sets of findings that they examine from the last (lower) court to rule on the case.
  

  The first is the findings of law.  This is a matter of interpretation of the overarching legal theory, and this is the focus of the higher court’s review.  Essentially it’s the judge’s understanding and interpretation of the law applied to a specific case.

  The other issue is the finding of fact. This is the summary of the facts of the case as presented in the trial.  For example, the pro-Prop 8 side claims that same-sex marriage hurts kids, and the pro-equality side states that there is no research whatsoever to support this.  Judge Walker’s ruling very clearly refutes something like 80 of these claims that were invoked in the course of the trial with no support (according to Dahlia Lithwick on The Rachel Maddow Show tonight).  Upper courts can reconsider these facts, but generally defer to the lower court judge who actually heard the entire arguments.

• For some of the best excerpts from today’s decision, check out Chris Geidner post at MetroWeekly’s Poliglot.  Definitely worth reading Judge Walker’s brilliantly written ruling.
• Then there is the issue of the “motion to stay.”  This is the effort to delay the implementation of this ruling.  Without a motion to stay, gay couples in California would be getting married right now–and quickly before it could be taken away again.  However, after some confusion (as was witnessed by retractions from several major media outlets and my updates in the last post), it was realized that Judge Walker did issue a stay preventing couples from getting married.  This is in place and will be ruled on by next Tuesday.  If Judge Walker’s denies the stay on Tuesday, a higher court can stay Walker’s ruling until they have a chance to hear the appeal in their court.  For a dose of irony, check out this DailyKos diary that points out the twisted logic behind the stay.
• Another issue that has been invoked by people like the National Organization for Marriage is the fact that Judge Walker is reportedly gay.  This is admittedly, on its face, a PR problem until you consider the question: would you say a female judge should recuse herself from a case looking at sexual harassment of a woman, or should a black judge should recuse himself from a case on racial discrimination?  No judge comes into a case without a personal history or perspective.  These people are selected because they demonstrated that  they can hear cases impartially, and Walker was nominated first by Ronald Reagan and then by George H.W. Bush.
• Finally, Joe Sudbay, among others,  asked a key question before the ruling: What will President Obama say, if anything, about this decision?  Well, Kerry Eleveld at The Advocate got the answer from the White House communications staff:
  

  “The President has spoken out in opposition to Proposition 8 because it is divisive and discriminatory. He will continue to promote equality for LGBT Americans.”

  Technically true (though he wasn’t out front when it was being voted on and his words were actually used in advertising for Prop 8/against equality), but the argument that he’ll continue to promote equality while defending the Defense of Marriage Act in court is wildly insincere.  A thousand other people have said this, but how will Obama look in 30 years when he wasn’t on the right side of history on this–seemingly for political reasons.  I don’t think he’s gaining votes with this stand, and I’d bet he’s suppressing his own voter turn out with the inaction. Sign on to an open letter to the President at AMERICAblog.

• You can thank the plantiffs in the case here.

ORDER granting [706] Motion to Shorten Time. Plaintiffs, plaintiff-intervenor and defendants are DIRECTED to respond to Doc #705 on or before August 6, 2010. The clerk shall STAY entry of judgment herein until the motion to stay pending appeal has been decided. (vrwlc1, COURT STAFF) (Filed on 8/4/2010)

More to come later when some of the reports have settled down, but one of the key points is that Judge Walker seems to have not stayed his decision (denying the stay would allow marriages licenses to be issued now).  Some media, however,  is reporting that it has been stayed.   Assuming the interpretation below is correct, same-sex marriage is legal for a (presumably) short window!

From Karen Ocamb at LGBT POV:

This just in from Jon Davidson, Legal Director for Lambda Legal, about the ruling by Judge Vaughn Walker:

“The plaintiffs won on both Equal Protection and Due Process grounds.

The judge found that Prop 8 is unconstitutional and enjoined it enforcement. He ordered that all defendants stop enforcing Prop 8 and start allowing same sex couples to marry again.  He directed the clerk to enter the judgment.

I expect to rule on the stay of his ruling but as far as know, he hasn’t yet.

The judge also found that there was not even a rational basis for excluding same sex couples from marriage. He described the evidence as overwhelming that the measure was unconstitutional.”

Walker also ruled that the case  must be reviewed with strict scrutiny, but it wouldn’t even pass the rational basis test.  From the little bit I know, that’s quite quite significant to say that as a class, we require strict scrutiny.

The decision is here.