August 2010

  • August 5, 2010

    The Senate, by a vote of 63-37 confirmed the nomination of Elena Kagan to the U.S. Supreme Court, making her the 112th justice. A single Democrat, Sen. Ben Nelson, opposed the confirmation, while five Republican Senators, Susan Collins, Lindsey Graham, Richard Lugar, Olympia Snowe and Judd Gregg, voted for Kagan. Kagan, former dean of the Harvard Law School and a frequent ACS participant, becomes the fourth woman selected to the Supreme Court and is President Obama's second appointment to the Court, following the confirmation of Justice Sonia Sotomayor, nearly a year ago.

    Senate Judiciary Committee Chairman Patrick Leahy said, "Her qualifications, intelligence, temperament and judgment will make her a worthy successor to Justice John Paul Stevens," The New York Times reported. See a special ACS Web page on resources about Kagan and the confirmation process here.

  • August 5, 2010
    Guest Post

    By Edward Stein, Vice Dean, Professor of Law, and Director, Program in Family Law, Policy, and Bioethics at Benjamin N. Cardozo School of Law, Yeshiva University.
    Judge Vaughan Walker's decision in Perry v. Schwarzenegger striking down Proposition 8, the California anti-marriage ballot measure from 2008, is a dramatic and sweeping victory for advocates of marriage equality and LGBT rights. The legal theories that undergird the decision, if affirmed on appeal, could radically change the landscape for same-sex marriage across the country. Today's decision is just another step in the long road to resolving the legal issue of same-sex marriage in California and the even longer road to a resolution across the nation. It will likely be a couple of years before the Supreme Court gets a chance to assess Walker's decision, and, for reasons discussed below, the Court may well not hear this case at all.

    The Context of Prop 8

    The quest for marriage equality for LGBT people in California is a story of successes and setbacks. In 2008, the California Supreme Court held that the state's marriage law was unconstitutional. After this ruling, thousands of same-sex couples were legally wed in California. In response, opponents of same-sex marriage proposed a ballot initiative to amend the state constitution so as to effectively undercut the ruling of the California Supreme Court. In November 2008, a majority of California voters supported this amendment, known as Prop. 8, thereby preventing additional same-sex couples from marrying in California. In 2009, the California Supreme Court upheld Prop. 8.

    Judge Walker's Opinion

    The case before Judge Walker, unlike the prior cases related to same-sex marriage in California, was in federal court (the U.S. District Court in San Francisco), and the plaintiffs' arguments were based exclusively on the U.S Constitution. Walker's decision rests on two distinct constitutional theories: (1) that prohibiting same-sex couples from marrying violates the Due Process Clause of the US Constitution and (2) that it violates the Equal Protection Clause of the US Constitution. At this level of abstraction, Walker's decision was like the decisions of some state supreme courts-including the California Supreme Court-that have held that prohibition on the legal recognition of same-sex relationships are unconstitutional on both equal protection and due process grounds. Walker's decision, which directly addresses only the legal situation for same-sex couples in California in light of Proposition 8, differs from prior state court decisions ruling in favor of same-sex marriage because it rests solely on the U.S. Constitution.

  • August 4, 2010
    Less than a month after a federal judge ruled that the anti-gay marriage law, the Defense of Marriage Act (DOMA), was constitutionally suspect, U.S. District Judge Vaughn R. Walker provided another victory to proponents of marriage equality when he struck down California's Proposition 8.

    "Proposition 8 cannot survive any level of scrutiny under the Equal Protection Clause," Judge Walker wrote in Perry v. Schwarzenegger. "Excluding same-sex marriage couples from marriage is simply not rationally related to a legitimate state interest."

    Walker's decision spurred widespread praise and discussion. A sampling of comments follows:

    SCOTUSBLOG's Lyle Denniston wrote:

    In a first step toward a historic Supreme Court test, a federal judge on Wednesday struck down California's ban on marriage for same-sex couples. U.S. District Judge Vaughn R. Walker ruled that so-called "Proposition 8" - approved by the state's voters in November 2008 - violated two clauses of the federal Constitution.


    The judge, in finding a violation of the Constitution's guarantee of legal equality, concluded that California could not justify treating committed couples differently solely because they were of the same sex. He applied the lowest constitutional test - ‘rational basis' - to this differing treatment. He also ruled that Proposition 8 violated rights that are protected by the Due Process Clause.

    The National LGBT Bar Association congratulated the American Foundation for Equal Rights and lead attorneys Theodore Olson and David Bois for the "historic victory." The National LGBT Bar Association will conduct a conference call tomorrow, August 5, at 3 p.m., EST to discuss the ruling.

    Gay & Lesbian Advocates & Defenders (GLAD), the organization that successfully represented gay couples challenging DOMA in Gill et al v. Office of Personnel Management et al., lauded the Perry decision, saying it "reminds us that the freedom to marry is a long-established right belonging to all Americans, including gay and lesbian Americans."

    Lambda Legal's Jennifer C. Pizer issued a statement providing legal analysis of Perry and thoughts on the road ahead for proponents of marriage equality. Pizer, the group's National Marriage Project Director, in part, said:

    This thorough review of both sides' evidence vindicates the rights of LGBT people not only to marry based on love and commitment, as heterosexuals do, but to be treated equally and fairly by their government more generally. Just as past marriage victories laid the foundation for today's important win, the court's preparation of a detailed record for the Court of Appeals provides a potent tool for other legal cases and the many, ongoing educational campaigns. It doubtless will help more people see that anti-gay discrimination in marriage is destructive and unjustifiable.

    Human Rights Campaign (HRC) President Joe Solmonese maintained:

    After hearing extensive evidence in support of marriage equality, and essentially no defense of the discrimination wrought by Prop 8, Judge Walker reached the same conclusion we have always known to be true - the Constitution's protections are for all Americans, including the lesbian, gay, bisexual and transgender community.

    National Center For Lesbian Rights (NCLR) Executive Director Kate Kendell said:

    Today's decision affirms that the law cannot treat people differently based on their sexual orientation and that a majority cannot strip a minority group of its fundamental freedoms at the ballot box. Judge Walker ruled that there truly is no substance to the arguments of those who would deny equality to same-sex couples. This is another landmark victory for same-sex couples and their families who simply want the dignity and security of having the same freedom to marry as others, as well as for all Americans who believe in our nation's bedrock principle of fairness. We are thrilled that the court has upheld the rights of liberty and equality enshrined in the U.S. Constitution.

    Not surprisingly, not all reaction was celebratory. The Family Research Council (FRC), a longtime opponent of same-sex marriage, maintained in a statement:

    This lawsuit, should it be upheld on appeal and in the Supreme Court, would become the 'Roe v. Wade' of same-sex 'marriage,' overturning the marriage laws of 45 states. As with abortion, the Supreme Court's involvement would only make the issue more volatile. It's time for the far Left to stop insisting that judges redefine our most fundamental social institution and using liberal courts to obtain a political goal they cannot obtain at the ballot box.

  • August 4, 2010

    A federal judge today declared California's ban on same-sex marriage unconstitutional, holding that it is not only a violation of the Fourteenth Amendment's equal protection clause, but also impermissibly burdens "the exercise of the fundamental right to marry."

    "Plaintiffs do not seek recognition of a new right," U.S. District Chief Judge Vaughn R. Walker wrote in the 136-page decision. "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."

    The decision continues:

    Proposition 8 fails to advance any rational basis in singling out gay men and lesbians for denial of a marriage license. Indeed, the evidence shows Proposition 8 does nothing more than enshrine in the California Constitution the notion that the opposite-sex couples are superior to same-sex couples. Because California has no interest in discriminating against gay men and lesbians, and because Proposition 8 prevents California from fulfilling its constitutional obligation to provide marriages on an equal basis, the court concludes that Proposition 8 is unconstitutional.

    The decision is expected to be appealed to the U.S. Court of Appeals for the Ninth Circuit and then up to the Supreme Court, the Los Angeles Times reports.

    The full opinion is available here.


  • August 4, 2010

    In a just-released ACS Issue Brief, Professor Stephen I. Vladeck (pictured right) looks to one high-profile terrorism case as an "an unvarnished example" of how the federal court system can adeptly handle trying terrorism suspects, providing new evidence in the ongoing debate on whether terrorism cases should be tried by civilian courts or military tribunals.

    The case of Ahmed Omar Abu Ali, a U.S. citizen convicted of conspiring with al Qaeda to kill President George W. Bush, raised new and hard questions, Vladeck writes in "Trying Terrorism Suspects in Article III Courts: The Lessons of United States v. Abu Ali," but they were questions the civilian criminal justice system is well-equipped to answer.

    "[W]here unique national security concerns are implicated, Abu Ali suggests that courts will attempt to reach accommodations that take into account both the government's interest and the fundamental protections to which defendants are entitled, keeping in mind Justice Frankfurter's age-old admonition that ‘the safeguards of liberty have frequently been forced in controversies involving not very nice people,' " writes Vladeck (pictured right), a law professor at American University Washington College of Law.

    Abu Ali's case presented the novel question of whether a defendant's Miranda rights were triggered where U.S. officials submitted questions to foreign officers for their use during interrogation. This question, Vladick points out, is not one that applies only in terrorism cases and the court's conclusion that the United States and Saudi Arabia were not engaged in a "joint venture" is applicable to other criminal procedure fact patterns.

    Abu Ali also presented the new challenge of incorporating foreign depositions in a U.S. court proceeding. Judge Gerald Bruce Lee used "creativity and flexibility" to craft a method for performing a live, two-way video deposition that transmitted the proceedings to the Alexandria courtroom, during which defense lawyers were present in both Saudi Arabia and Alexandria, Vladeck writes. Lee's innovation showed how technology can help cabin proposed changes to current procedural rules, by adapting within the present framework, Vladeck adds.