Ninth Circuit

  • June 4, 2012
    Guest Post

    By Mae Kuykendall, Professor of Law, Michigan State University, and Director of the Legal E-Marriage Project


    The prospects for the Supreme Court to issue a ruling affecting the marriage rights of same-sex couples seem to be accelerating. At the forefront are three distinct contexts for litigation: whether states can be required to authorize same-sex marriage, whether the federal government can deny state-created same-sex marriages federal recognition, and whether states can be required to recognize valid same-sex marriages performed in other states. Two U.S. circuit courts, the Ninth and the First, have issued opinions that treat with skepticism the governmental interest in blocking gay marriage. Both Courts proceeded with the caution required by Circuit Courts, which must follow Supreme Court precedent. For that reason, both courts avoided ruling that same-sex marriage is a fundamental right, and also avoided holding that gay men or lesbians are entitled to special judicial solicitude to protect them from unfavorable legislation.

    The Ninth Circuit’s conclusion limited the ability of a state to authorize a legal status with rights just like marriage, but withhold the word marriage. The Court reasoned that stripping away the word “marriage,” while leaving the rights intact, has no purpose except inflicting second-class status on gay couples.

    In addressing the state’s obligations to authorize marriages of residents, the California case has no direct concern with federalism. The primary concern is the local marriage law of California.

    In the First Circuit opinion, there is a subtle yet powerful convergence of federalism principles and equality principles. The First Circuit held unconstitutional a provision of federal law, Section 3 of the Defense of Marriage Act (DOMA), which defines the word marriage, for all purposes of the U.S. code, as the union of one man and one woman. Significantly, the First Circuit held that the law violated both federalism rules and principles of equality.

  • February 22, 2012

    by Jeremy Leaming

    Though leaders of the Maryland Senate have delayed consideration of Gov. Martin O’Malley’s marriage equality bill, The Washington Post reports the measure is still expected to pass the chamber and reach the governor by week’s end.

    The Senate’s Minority Whip Edward R. Reilly (R-Anne Arundel), the newspaper reports, obtained the delay so amendments to the equality measure could be prepared. Senate President Thomas Miller Jr. said he expects the measure to pass the Senate, as it did last year.

    O’Malley (pictured) is pushing hard to add Maryland to the list of states that have legalized same-sex marriage. Following last week’s approval of the measure by the Maryland House of Delegates, the governor said “we’re prepared to redouble our efforts” as the Senate considers the measure.

    “The common thread,” he continued, “running through our efforts together in Maryland is the thread of human dignity; the dignity of work, the dignity of faith, the dignity of family, the dignity of every individual.”

    As in Washington, where Gov. Chris Gregoire recently enacted marriage equality legislation, Christian evangelical lobbyists in Maryland are vowing to drag marriage equality before voters, if need be.

    The Maryland Marriage Alliance, representing a gaggle of Christian evangelical interests, is loudly arguing that marriage must remain exclusive to men and women. In a missive on the group’s website, it claims that houses of worship that refuse to conduct weddings for gays and lesbians will place their tax benefits in jeopardy. Maryland’s equality bill, however, contains and exemption for houses of worship, much like the one that passed last year in New York. The Md. bill explicitly states that houses of worship, which receive generous government tax benefits, can play be different rules, and discriminate against gays and lesbians if they wish.

  • February 20, 2012

    by Jeremy Leaming

    While some lawmakers and politicians are working to end a few of the nation’s inequalities, like the one centering on the right of gays and lesbians to wed, others are keeping up the ignoble work of trying to hobble or defeat efforts to advance equality.

    For example, in many of the states where marriage equality is advancing, special interest groups have mounted, or in the midst of doing so, campaigns to ensure that government recognition of marriage belongs exclusively to men and women.

    After Washington Gov. Chris Gregoire enacted marriage equality legislation, social conservatives promised to gather enough signatures to place the newly gained civil liberty before the voters. N.J. Gov. Chris Christie has endorsed placing civil liberties before the voters when he vetoed a bill allowing lesbians and gays to wed. (Newark, N.J. Mayor Cory Booker took issue with Christie’s tactic, saying equal rights should never be placed before the whims of the majority.)

    Religious right groups are also promising to topple the effort by Maryland to allow same-sex marriage. The Maryland Marriage Alliance, which calls itself a an “interfaith coalition dedicated” to keeping marriage an exclusive institution, has promised to launch a petition movement to place the law before voters, provided it passes the Maryland Senate and is signed by Gov. Martin O’Malley, both highly likely. The Maryland Senate passed a similar measure last year, and O’Malley (pictured) has said he would sign the new measure. The governor has also upped his involvement this time around – he’s sponsoring the equality legislation that is moving through the legislature.

    Following the approval last week by the Md. House of Delegates, O’Malley applauded the outcome, saying the chamber had “voted for human dignity.”

    The marriage alliance, a gathering of primarily evangelical Christian groups, issued a press statement decrying the House’s vote as undermining the exclusive definition of marriage and noting, “thankfully,” that the state “allows for a referendum process by a people’s vote, and we are committed, if needed, to bring this issue to the vote of the people of Maryland.”

    Like the law enacted last year in New York, the Maryland marriage equality measure includes a provision granting an exemption for houses of worship to refuse to marry lesbians and gays. The Maryland Senate is expected, The Washington Post reports, to promptly take up the equality bill. The newspaper says the senate’s Judicial Proceedings Committee and the full chamber “quickly could approve the bill” with the possibility of sending it to O’Malley by week’s end. The state is moving quickly to become the eighth one to allow lesbians and gays to wed, joining Washington, New York, Massachusetts, Connecticut, New Hampshire, Vermont, and Iowa. The District of Columbia also recognizes same-sex marriage.

  • September 23, 2011

    President Obama is continuing his effort to diversify the federal bench with his nomination of U.S. District Court Judge Jacqueline H. Nguyen to the U.S. Court of Appeals for the Ninth Circuit. If confirmed, Nguyen would be the first Asian Pacific American woman to sit on a federal appeals court, according to a statement from the National Asian Pacific American Bar Association.  Nguyen has already made history; when she joined the district court, she was the first Vietnamese-American to serve as a federal district court judge.

    Nguyen came to the U.S. as a young girl, after she and her family fled Vietnam toward the end of the Vietnam War. She lived in a tent city for over a month before settling in the Los Angeles area. In her application for her district court seat, Nguyen wrote, “I nevertheless feel incredibly fortunate because those early years gave me invaluable life lessons that have shaped who I am today,” Sen. Dianne Feinstein recounted in a statement.

    Nguyen would fill one of four vacancies on the Ninth Circuit, three of which are considered judicial emergencies. California Supreme Court Justice Goodwin Liu, also Asian Pacific American, would have filled one of these seats, but his nomination was filibustered in the Senate.

    Also this week:

  • September 21, 2011
    Guest Post

    By Rebecca Smith, Coordinator, Immigrant Worker Justice Project, National Employment Law Project


    For more than two centuries, especially in times of national political and economic upheaval, disenfranchised populations have taken to the streets and sidewalks to find jobs and to demand change. During that same period, it has been those most marginalized who have defended the bedrock right to free speech guaranteed by the First Amendment. So it is fitting that day labor groups have achieved a reaffirmation of this Constitutional and human right in a recent opinion from the U.S. Court of Appeals for the Ninth Circuit.

    Every day, some 200,000 workers search for day labor jobs or work as day laborers across the country. Just like the residents of Hoovervilles in the Great Depression, day laborers have become a symbol of much that is wrong with our society and economy – a national trend of reliance on a “just-in-time” workforce, where jobs are subcontracted out to the lowest bidder who pay rock-bottom (and often sub minimum) wages, and a reflection of a broken immigration system that excoriates those who are its victims. In today’s economic and political climate, day laborers are the quintessential example of jobless members of our society who most need the sidewalks to communicate.

    For prospective employers, day laborers fill a niche labor market for which there is huge demand – as landscapers, household workers and home repair experts for urban and suburban families and businesses. For the workers themselves, day labor presents a daily opportunity to avoid destitution and a potential to make the transition to a more stable job.

    Just like the Wobblies of a century ago – who engaged in free speech struggles up and down the Pacific Coast as they organized hobo workers – day laborers have become targets for those who would suppress their presence and their speech. Along with many cities nationwide, the city of Redondo Beach, Calif. passed an ordinance broadly outlawing solicitation of employment, business or contributions on city streets and sidewalks, citing supposed concerns about traffic safety and traffic flow. In 2004, the city began the Day Labor Enforcement Project. Undercover officers arrested dozens of day laborers.

    But as we all know, the First Amendment protects speech regardless of the popularity of its content or its messenger. The workers sued to stop the arrests and uphold their right to search for work in public spaces. Last week, on the eve of Constitution Day, a full eleven-member panel of the Ninth Circuit held in the workers’ favor. In no uncertain terms, the Court said: “We agree with the day laborers that the Ordinance is a facially unconstitutional restriction on speech.” Guided by “well-established principles of First Amendment law,” the Court confirmed that day laborers have a Constitutional right to gather in public places and communicate their need for work.