On March 5, the California Supreme Court heard the case of Strauss v. Horton, a consolidated lawsuit from plaintiffs hoping to invalidate Proposition 8. On May 26, the Court ruled Proposition 8 was valid, though the 18,000 couples who married before its passage would remain married. Ever since, the debate has turned to whether gays should attempt a ballot initiative repeal in 2010 or wait till 2012, or whether to take the case to the U.S. Supreme Court via Ted Olson and David Boies. In the meantime, however, a rehearing petition for Strauss v. Horton was filed without anybody noticing. Huh?
An alert reader tips us off that on Friday, Shannon Minter (the transsexual legal director for San Francisco’s National Center for Lesbian Rights, pictured) from Strauss v. Horton, who faced off against Ken Starr in court, filed a petition [scroll to the bottom] to have the case heard again by the California Supreme Court. We’re not legal experts, so we’re getting up to speed on exactly what this means, but undoubtedly it looks like an attempt to get the justices to hear the case again. (We figure that’s unlikely.) Or maybe it’s part of a larger strategy.
We’ve reached out to Minter for clarification.
UPDATE: NCLR responds with this statement, explaining they are not asking for a re-hearing of the Prop 8 case: “NCLR and our co counsel (Lambda Legal, the ACLU, Munger, Tolles & Olson LLP, and David Codell) filed a petition for rehearing for the limited purpose of asking the court to correct a factual error in the opinion. The document must be titled petition for rehearing because that is the only procedural vehicle for requesting any modification, but we are simply asking the Court to correct a factual error, not to rehear the entire case. The current decision states that the racially discriminatory initiative amendment that was challenged on federal grounds in Mulkey v. Reitman was never challenged on the alternative ground that it was an unlawful amendment (i.e., the same ground upon which we challenged Prop 8). In fact, however, that initiative amendment was challenged on that basis in a companion lawsuit, so we have asked the Court to correct that error. That is important because the distinction between an amendment and a revision will continue to be an important issue under California law, and we do not want future courts to be misled by that factual error.”
How about we take this to the next level?
Our newsletter is like a refreshing cocktail (or mocktail) of LGBTQ+ entertainment and pop culture, served up with a side of eye-candy.
edgyguy1426
When you guys run a photo next to an article, could you please identify who it is? I have to re-read the article and deduce who it is by process of elimination! Thanks!
J.T.
timncguy
Why do all the articles related to CA Prop 8 continue to talk about the pros / cons of trying a new proposition again in 2010 vs 2012 as though they are mutually exclusive? Is there some LEGAL reason why the prop can’t be put on the ballot every two years starting in 2010 until it passes?
Prof. Donald Gaudard
@timncguy: There is no legal reason why you can’t do both; it’s a matter of energy collecting signatures, money, and LEADERSHIP which is sorely lacking as evidenced by the first Prop 8 battle. Don
Qjersey
Well someone needs to remind the CA supremes that you can’t put the rights of a minority up for a vote. The US supremes knocked down Colorado’s prop 2 for this reason over a decade ago.
mixed-fruits
Do you actually know it was Shannon Minter who filed a petition for rehearing?
DuttyBarb
As usual with the reactive approach.. am i the only one that thinks trannies should be institutionalized???
andy_d
@DuttyBarb: Probably so. But then it might not hurt for YOUR head to be examined . . .
Praenomenal
@DuttyBarb: Well hello there!
Why don’t you eat a big bag of FUCK YOU.
Thanks.
That is all.
Cam
@Praenomenal:
LOL After your post I figured you would LOVE this Lilly Allen Song…
http://www.youtube.com/watch?v=UV26OMSb_VQ
Emily
What I want to know is, why is the fact that Minter is trans even relevant??? Seriously, just because a trans person is in the news, doesn’t mean the media has to mention it EVERY GODDAMNED TIME.
Praenomenal
@Emily: Or gay for that matter. Why should we even mention it? I mean if we just acted like straight people it would not even be news!
Emily
@Praenomenal: What’s your point here? Minter’s trans status has nothing to do with him refiling. The media (Queerty included) seems to forget that we are people first. The adjective “transsexual” is always added in for the shock value it carries. And inevitably, some asshole has to come along and say something like we all need to be institutionalized. Never mind the fact that we’re perfectly capable of functioning in society like everyone else, or that our gender doesn’t have any relevance to how we contribute to society.
Chitown Kev
Leaving the ignorant transphobic asshole aside, the CA Supreme Court site does not indicate who refiled the petition.
Second of all, they never approached the question of equal protection in the last hearing and the Cali Supremes made a bare mention of it in their decision. Remember they didn’t approach the question of equal protection (though Moreno mentioned it in his dissent) because that would have kicked it into the federal realm.
Getting the Cali Supremes to rule one way or another on a “deep” and solid equal protection grounds may be a needed step for a federal lawsuit.
I’m a layman, would rather have someone with knowledge of the law to answer this question
edgyguy1426
@DuttyBarb: No Dutty, I think it’s you AND those two disc jockeys whose radio staion is losing advertising faster than lunch thru a supermodel. Hey wait a gosh derned minute! I thought you were thru with this site once and for all! That make you AND Obama not sticking to your promises.
Chitown Kev
The re-petition was filed so that a factual error in the CASC’s opinion could be corrected to prevent future confusion in the California Courts.
RegGuy815
ChiTown Kev was correct. The California Supreme Court could not rule on the Equal Protection issue, as it was not part of the suit. For whatever reason, the legal team appealing the decision did not base the appeal on the Equal Protection clause of the 14th Amendment to the US Constitution as a basis for setting aside Prop 8. US Constitution is the Supreme Law of the law, regardless of the various state constitutions. However, for a provision of the state constitution to be ruled un-Constitutional by the US Supreme Court, a claim has to be made and the US Supreme Court has to agree to hear the case and act. Prevailing wisdom is that the Prop 8 team did not think this was the “right” US Supreme Court to bring this case before. Looks like they may be right, given the recent decision not to hear the challenge to Don’t Ask Don’t Tell. Further, our community is getting tepid support, at best, from President Obama. Unfortunately, the bad thing is if this issue is brought before the US Supreme Court, they agree to hear the case and then decide against us, it could take a very long time to get the issue back before the Court, as they are loathe to reverse a previous Court decision.
Chitown Kev
@RegGuy815:
Thanks.
What I posted in #14 is the info that I received…that the re-petition is a simple correction for the record.
But since it’s been brought up (The Gay Numbers would be a big help with this, I think) would the equal protection argument have to be brought up before the California Supreme Court prior to taking it to the US Supreme Court?
RegGuy815
@Chitown Kev: You were correct in #14, too. Former Solicitor General Ted Olson is making a federal claim by filing in the federal courts that Prop 8 as upheld by the California Supreme Court is un-Constitutional under the US Constitution, as it deprives gays and lesbians of both equal protection and due process under the 14th amendment. He is basing his argument, in large part, on the previously decided case of Loving v. Virginia, that found laws prohibiting interracial marriage as un-Constitutional. Further, in the Loving case, the Court’s opinion was pretty clear in declaring that marriage is a fundamental right. In Strauss v. Horton, for whatever reason, they did not raise a 14th amendment claim and it is now too late to bring this issue into the argument in the present case, even in a petition for re-hearing. They would have to file another suit and assert a 14th amendment claim.
Alec
@RegGuy815: You can’t read that much into the refusal to hear the DADT challenge. The military has a lot of leeway when it comes to regulations of their soldiers, even in the area of fundamental rights and equal protection.
Chitown Kev
A Statement from NCLR Legal Director Shannon Minter Clarifying the Recent Court Filing in the Prop 8 Challenge
Share
Today at 10:33am
06.09.09—NCLR and our co counsel (Lambda Legal, the ACLU, Munger, and David Codell) filed a petition for rehearing for the limited purpose of asking the court to correct a factual error in the opinion. The document must be titled petition for rehearing because that is the only procedural vehicle for requesting any modification, but we are simply asking the Court to correct a factual error, not to rehear the entire case. The current decision states that the racially discriminatory initiative amendment that was challenged on federal grounds in Mulkey v. Reitman was never challenged on the alternative ground that it was an unlawful amendment (i.e., the same ground upon which we challenged Prop 8). In fact, however, that initiative amendment was challenged on that basis in a companion lawsuit, so we have asked the Court to correct that error. That is important because the distinction between an amendment and a revision will continue to be an important issue under California law, and we do not want future courts to be misled by that factual error.
Marion from Germany
Take this for all homophobic guys.
Stevie made a real good job.
http://www.youtube.com/watch?v=03PnU27cWDs
TomL
For the record, California also has an equal protection clause in the State Constitution. Article 7, to which Prop 8 was an amendment, reads, in part, “A citizen or class of citizens may not be granted privileges or immunities not granted on the same terms to all citizens.”
A challenge based strictly on the US Constitution has to originate in the Federal Courts, which is why the current Boies-Olson challenge was filed there.
Chitown Kev
@TomL:
But would that have to be based on the California Constitution first, that’s what I’ve been asking? And would Prop 8, possibly, have to go back to the CASC specifically to argue the equal protection dilemma? (It would still lose, IMO, but don’t you have to argue it?)
Because the petitioners did not do that because of the federal issue. It was on the basis of that clause that the California Supremes voted for marriage equality in the first place.
Prof. Donald Gaudard
The California Constitution has 2 equal protection clauses as follows:
SEC. 7. (a) A person may not be deprived of life, liberty, or
property without due process of law or denied equal protection of the laws;
(b) A citizen or class of citizens may not be granted privileges or immunities not granted on the same terms to all citizens.
In the original Writ of Mandate which the parties filed, equal protection arguments were raised under the California Constitution only. The reason for not raising a 14th Amendment to the US Constitution equal protection argument was to keep it out of the federal courts.
If the State Supreme Court rules only on State Constitutional grounds, there is no basis for appeal to the federal courts or to the US Supreme Court.
The California Supreme Court, in their original In re Marriage Cases, ruled that the equal protection clause applied to gay marriages. In the Prop 8 case, the Cal SC barely dealt with the equal protection clause because they had already decided the outcome of the case and the equal protection clauses only went against their arguments. In substance, they were dishonest in their 185 page opinion because they wanted to uphold Prop 8. It’s all politics!!
Prof. Donald Gaudard
Attorneys Ted Olsen and David Boies have filed a complaint and a request for injunction in the federal courts based upon a federal equal protection argument and on a federal due process argument. In their request for injunction, which the federal district court will hear on July 3, they are requesting a stay of Prop 8 (thereby allowing for continuing gay marriages) until the trial on the complaint. If the injunction is denied, they can then appeal it to the liberal 9th Circuit Court of Appeals, and if it is again denied they can, if they choose to, appeal it to the US Supreme Court. In any event (no matter what happens to the injunction), the trial on the merits would then go on. In California there are 2 classes of gay people: those 18,000 who are married and the thousands of gays who want to get married. These are 2 separate groups of gay people who are not equal before the law. Then there are married heterosexuals, married gay people, and gay people who want to get married. These groups of people are not equal before the law in violation of the federal equal protection clause of the 14th amendment. In addition, there is a federal due process argument which also has merit. Don
Prof. Donald Gaudard
There are several additional points to be made in the federal challenge to Prop 8 brought by Olsen and Boies. The hearing on the injunction is July 2, at 2:30 pm, not July 3 (a typo).
Secondly, the parties being sued in the federal Prop 8 case are the governor, the attorney general and other state officials. When governmental officials are sued, they are usually represented by the attorney general. But that may present a problem in this case. To defend the federal Prop 8 case the AG would have to argue that Prop 8 was constitutional (not a violation of the federal equal protection clause and not a violation of federal due process clause); however in the State Prop 8 case, he argued that Prop 8 was a valid amendment (not a revision), but he then argued that it was unconstitutional. So he’s in a pickle. I suspect the State might hire an outside law firm to represent them in the federal case, but who knows what the AG will do (it’s Jerry Brown, after all, and he is likely running for governor in 2010).
In addition, in California state court, gays are a “suspect” class. However, in the federal courts under the jurisdiction of the 9th Circuit, gays are only entitled to “heightened” scrutiny because of the Witt v. Air Force case. This means that the burden of proof is on the government to show a substantial state interest for the statute and that the statute is the least restrictive means of achieving that substantial state interest.
Meanwhile, legal matters are getting more and more interesting. We have the state Senate in NY and the gay marriage issue, and we have the federal challenge to the Defense of Marriage Act to which the Obama administration must respond by June 29 in which Obama has to decide whether or not to challenge a portion of the Defense of Marriage Act which grants federal benefits to married gay couples (he’s a pig if he does), and we have Washington DC recognizing gay marriages performed in other jurisdictions on or about July 3.
Prof. Donald Gaudard
@Chitown Kev: Kev, the pleadings for the federal Prop 8 challenge can be found at:
http://www.equalrightsfoundation.org/press.html
The standard of proof in this case is not “heightened” scrutiny as I wrote above (gays in the 9th circuit court of appeals are entitled to “heightened” scrutiny), but the standard of proof is “strict” scrutiny. The reason for this is that marriage is a fundamental right, and when fundamental rights are involved the standard of review is “strict” scrutiny.
In a “strict” scrutiny case, the burden of proof shifts to the government to show that Prop 8 serves a “compelling” state interest (as opposed to a “substantial” state interest) and that Prop 8 is the least restrictive means of accomplishing that compelling state interest.
Nine of the 14 judges in the Northern District of California were appointed by Democrats; the judge hearing the request for injunction is a Reagan appointee, but he is a maverick. For example, he supports the legalization of drugs and treating drugs as a health problem and not a criminal matter — definitely not a Republican position.
The requirements for granting an injunction are:
likelihood of success on the merits, irreparable harm to the plaintiffs, the balance of hardships, and public-interest considerations all of which favor the granting of the preliminary injunction in my opinion. So it’s hard to know what this Republican judge will do. Don
Chitown Kev
@Prof. Donald Gaudard:
Thanks, Professor. I have downloaded them and will read them.
I am neither a lawyer nor a law student nor do I play one on TV (I was a geeky enough kid that I enjoyed watching “The Paper Chase”, though).
I was up ’til 1 in the morning, in fact, reading In:Re Marriage cases and the Prop 8 decision.
On that Reagan appointee, isn’t that an “old time Republican” (the government should stay out of people’s buisness kind of Republican). there’s still a few of those around.
Thanks
Prof. Donald Gaudard
@Chitown Kev: Kev, if you enjoy reading pleadings from gay cases, you may be interested in the challenge to the Defense of Marriage Act (DOMA) filed by Gay and Lesbian Advocates and Defenders (GLAD). It is extremely well written and they have really done their homework in gathering the appropriate plaintiffs. It can be found at:
http://www.glad.org/uploads/docs/cases/gill-complaint-03-03-09.pdf
This, too, could be an interesting case, Kev. When a federal law is challenged, it is up to the Justice Department & the Attorney General (Eric Holder) to defend it. But I doubt that the AG would take a position contrary to what President Obama wants, and Obama has said he is opposed to the DOMA. He has until June 29 to decide what he’s going to do on this case.
If the President thinks a statute is unconstitutional on its face, then the Justice Department does not have to defend it, but instead joins the plaintiffs in challenging it. Then, it’s up to the Congress to hire lawyers to defend their challenged statute. What makes this interesting is that the Congress is controlled by the Democrats! I don’t know if the Republicans, on their own as a minority party has standing to defend the challenged statute or not or whether it’s up to the majority party to decide to challenge it (if someone who practices Constitutional law could help us, it would be appreciated). As I said, it’s going to get interesting in the next several weeks.
Don
Prof. Donald Gaudard
@Chitown Kev: A little more information for you, Kev, concerning the GLAD challenge to the DOMA. Professor Laurence Tribe is probably one of the foremost constitutional law scholars in the US. He participated in the oral arguments before the US Supreme Court in the case of Bush v. Gore. He has also written a Constitutional Law text book which is used in numerous law schools throughout the country. In fact, he was President Obama’s con law professor at Harvard.
Prof. Tribe has publicly stated that he thinks that DOMA is unconstitutional on its face and should not be defended by the AG.
Eric Holder, the AG, is friendly to gays; however, in his confirmation hearing, he stated that he thinks it’s up to the Justice Department to defend laws written by Congress. So, it’s going to be really interesting to see what he and Pres. Obama decide to do with the challenge to DOMA.
Also, Senator Kerry from Mass. and the Mass. AG have come out in support of the challenge to DOMA.
Don
Chitown Kev
@Prof. Donald Gaudard:
Yeah, I read that about Prof. Tribe on Huff Post.
And I know Cass Susstein won’t weigh into this, as he may come up for a Supreme Court nomination.
I do wonder, though, what Richard Posner would think of all of this.
Prof. Donald Gaudard
@Chitown Kev: Kev, another case you may be interested in reading is Witt v. Air Force:
caselaw.findlaw.com/data2/circs/9th/0635644P.pdf
Witt was an Air Force nurse for 18 years when she was suddenly investigated for being a lesbian. She refused to participate in the inquiry, refused to respond to a clergy person the military sent to counsel her and generally did not participate in anything. She had an ongoing relationship with a woman who was not in the military, did not have sex on a military base, and did not tell anyone about it. As I recall they lived about 240 miles from the military base. Anyway, she was kicked out and she fought it.
The trial court dismissed her case for failure to state a claim on which relief could be granted, and she appealed to a 3-judge panel of the liberal 9th circuit court of appeals.
The court then issued a 2-1 decision favoring Witt and remanding the case to the trial court for a trial. The dissent was even more liberal than the 2 judges who agreed with Witt.
The court made a number of findings that are very favorable for gays in the 9th circuit (essentially the western 1/3 of the country). First, they held that gays were entitled to “heightened” scrutiny. All prior cases had held that the military only had to show any feasable rational basis for the test. With heightened scrutiny, the burden shifts to the government to show a substantial interest in upholding the statute. The crowning blow for the military was that the court held that this was an “as applied” case. What that means is that the military cannot simply argue that gays are detrimental to unit cohesion and unit moral. In this case, “as applied” means that the military has to show that Witt’s lesbianism itself was detrimental to unit cohesion and unit moral. And they have to prove the statute promotes a substantial basis for overcoming this detriment and that it is the least restrictive means to accomplish this purpose. However, no one knew she was a lesbian!
What’s amazing is that Attorney General Eric Holder decided NOT to appeal this case which is overwhelmingly detrimental to DADT to the US Supreme Court. Don
Chitown Kev
@Prof. Donald Gaudard:
Oooooh, now this is interesting…
So when John Conyers (who’s generally been a critic of the President) announced earlier this month that he had the votes to get DOMA out of committee…he’s basically washing his hands of a lot of this drama, it seems….
Very interesting…
Prof. Donald Gaudard
@Chitown Kev: Kev, check out the following Web site:
http://www.washblade.com/thelatest/thelatest.cfm?blog_id=25730
It’s an article about how Attorney General Eric Holder is commemorating the Stonewall Riots at a Dept. of Justice Gay Pride function. Could this portend his deciding to challenge the provisions of the Defense of Marriage Act which was brought by GLAD and to which he has to respond by June 29? Let’s hope so.
Don