Perry v. Schwarzenegger

  • July 28, 2011
    Video Interview

    by Jeremy Leaming

    Beyond the most recent high-profile state legislative victories for marriage equality, there are “huge advancements that have been made in terms of [court] doctrine regarding sexual orientation law,” North Carolina University law school professor Holning S. Lau told ACSblog.

    Lau, a panel participant at the ACS 10th Anniversary National Convention, said that until recently “there was virtually no precedent to be cited for the proposition that sexual orientation discrimination should be subject to heightened scrutiny -- this idea that sexual orientation is a suspect or quasi-suspect status. But over the past few years, we’ve seen a crystallization of jurisprudence to support that point. The high courts of California, Iowa, Connecticut, have all issued opinions saying that sexual orientation is either a quasi-suspect or suspect status."

    He continued, “We saw the same conclusion reached in Perry v. Schwarzenegger [the 2010 federal court opinion invalidating California’s anti-gay marriage law, Proposition 8], in Eric Holder’s memo on DOMA [the federal anti-gay marriage law]. And that’s been huge, because prior to this burgeoning of jurisprudence on this point, a lot of courts concluded in the opposite direction.”

    So while a few state legislatures, most dramatically, the New York legislature, have come through in favor of marriage equality, there is a slowly developing body of jurisprudence that looks promising for the advancement of equality for the LGBT community.

    “We’ve seen the jurisprudence really reach a new point,” Lau said, “and there is good case law, persuasive case law, in many instances … case law that courts can make use of to support the idea that sexual orientation discrimination should be subject to heightened scrutiny.”

    Earlier this month, Professor Scott Lemieux wrote, in a piece for The American Prospect, that the LGBT community must not forgo the courts in seeking full equality. All options must be used in securing equality, he wrote.

    Watch video of Lau’s entire interview below or download it as a video podcast. The video is also available here.

  • May 16, 2011

    The effort by proponents of California’s anti-gay marriage law, Proposition 8, to invalidate last year’s federal court opinion finding it unconstitutional because the judge who issued the opinion is gay reveals the wobbly arguments against marriage equality, writes UCLA law professor Adam Winkler.

    In this piece for The Huffington Post, Winkler says “ironies abound” over the marriage equality opponents’ arguments that the opinion should be invalidated because Judge Vaughn R. Walker (pictured), now retired, “stood to gain personally from ruling in favor of same-sex marriage.” That is, Winkler notes, if California were to recognize same-sex marriage, Walker might be “able to take advantage of that opportunity and secure any and all of the benefits that accrue from marriage.”

    Winkler continues:

    Writing in the National Review Online, conservative legal commentator Ed Whelan admits that marriage is a "valuable legal right." That is correct -- and exactly why states shouldn't be able to deny gays and lesbians the ability to marry. It's a violation of the Constitution's command that all people be afforded "equal protection of the laws" to deny people fundamental rights on the basis of irrelevant characteristics, like their race, sex, religion, or sexual orientation. Yet that is precisely what the ban on same-sex marriage does.

    Implicit in Proposition 8 supporters' effort to recuse Judge Walker is the notion that, unlike a gay judge who might benefit from marriage, a heterosexual judge would be impartial. But to accept that notion, we must reject another central claim in the case against same-sex marriage: that gay marriage undermines the traditional institution marriage.

  • April 26, 2011

    A Religious Right organization is urging a federal court in California to invalidate the 2010 decision striking the state’s anti-gay marriage law, Proposition 8, because the judge who issued that opinion is gay, the Los Angeles Times reports.

    The newspaper notes, “In a court filing, the sponsors of the ban on gay marriage, ProtectMarriage, asked the chief judge of the federal court in San Francisco to nullify last August’s ruling by former U.S. District Chief Judge Vaughn R. Walker, who retired earlier this year.”

    The group’s filing states, “Judge Walker’s 10-year-long same-sex relationship creates the unavoidable impression that he was not the impartial judge the law requires.”

    SCOTUSblog’s Lyle Denniston provides analysis of the group’s filing and link to it. He writes that the filing is the “latest effort by the measure’s supporters to challenge Judge Walker; they have pending in the Circuit Court a request to block any further public release of the videotape of the trial in his court, contending he has wrongly made public portions of that recording, which is now under seal after the Supreme Court blocked public broadcasting of the trial itself.”

    In post for Legal Ethics Forum, University of Minnesota Law School Professor Richard W. Painter, the former White House Chief Ethics lawyer for President George W. Bush, took issue with a couple of bloggers who also charged that Judge Walker should not have heard the Prop. 8 case.

    “The absurdity of this claim is obvious,” Painter wrote. “The mere fact that a judge belongs to a class of persons affected by a case does not require recusal.”

    In other events regarding the struggle to advance marriage equality, The New York Times reports on one of the nation’s largest law firms, King & Spalding, and its decision to step away from defending the anti-gay law, the Defense of Marriage Act (DOMA), in court. Since the Obama administration announced earlier this year that it would stop defending the law in court, Republicans in the U.S. House of Representatives turned to outside counsel to defend the law, and tapped King & Spalding attorney Paul D. Clement.

    Clement, a former U.S. Solicitor General in the Bush administration, resigned from the law firm yesterday after it decided to drop the case. Clement, the newspaper reports, will represent the Republicans’ argument against DOMA as a partner at Bancroft PLLC.

    Announcing his resignation from King & Spalding, Clement said, “Defending unpopular clients is what lawyers do.”

    King & Spalding Chairman Robert D. Hayes Jr. said in a statement that the firm inadequately vetted the case and should not have agreed to take it. The Times noted a clause in the House contract that barred the “firm’s lawyers from any advocacy for or against bills that would or repeal the marriage act.”

    Evan Wolfson, president of Freedom to Marry, lauded King & Spalding for dumping the case.

    “In America, every person deserves a defense, but not every position does,” Wolfson said in a press statement. “King & Spalding has recognized what President Obama, the Department of Justice, and many members of Congress have joined Freedom to Marry in concluding: federal marriage discrimination and the so-called ‘Defense of Marriage Act’ are indefensible.”   


  • April 21, 2011

    U.S. District Court Judge Vaughn R. Walker, who ruled last year that California’s anti-gay marriage law Proposition 8 violates the constitutional rights of lesbians and gay men, has been wrongly maligned by conservative bloggers, writes University of Minnesota Law School Professor Richard W. Painter.  

    Painter, the former White House Chief Ethics Lawyer for President George W. Bush, writes that the two National Review Online bloggers have brought the “recusal debate” to a new low.

    The bloggers, Painter writes at Legal Ethics Forum, have accused Walker (pictured), now retired, “of unethical conduct because (i) they do not agree with his decision in the case, (ii) the case involved same-sex marriage in California, and (iii) Judge Walker lives in California and has a relationship with another man. Never mind that the Judge has not sought a marriage license. His hearing and deciding the case was a ‘rampant course of misconduct.’”

    Painter, who does not agree with Judge Walker’s opinion in the Prop. 8 case, continues:

    The absurdity of this claim is obvious. The mere fact that a judge belongs to a class of persons affected by a case does not require recusal. If this were the rule, women judges could not sit on sex discrimination cases – and neither could men judges for that matter. Black judges could not sit on race discrimination cases – and neither could white judges. And so on. Wrong.

    What is unfortunate is that the argument here is not only ludicrous, but that the National Review bloggers have framed it in language that shows their own bias – both against a highly regarded federal judge and against an entire class of persons.

    Judge Walker, who was appointed to the bench by President Ronald Reagan, should take comfort in the fact that he is in good company. The same tag team of bloggers has attacked the lawyer in the same case, famed GOP litigator Ted Olson who argued and won Bush v. Gore.

    The case, Perry v. Schwarzenegger, is pending before the U.S. Court of Appeals for the Ninth Circuit.

  • October 29, 2010
    Guest Post

    By Steve Sanders, an appellate lawyer and adjunct faculty member at the University of Michigan Law School
    Thirteen states have filed an amicus brief in Perry v. Schwarzenegger, the case in which the U.S. Court of Appeals for the Ninth Circuit will review a district court decision that struck down California's same-sex marriage ban. The brief-submitted by the attorneys general of Alabama, Alaska, Florida, Idaho, Indiana, Louisiana, Michigan, Nebraska, Pennsylvania, South Carolina, Utah, Virginia, and Wyoming-argues that it is gravely important that states be allowed to continue privileging "traditional" marriage and denying equality to same-sex couples. One of the brief's lead counsel is Virginia attorney general Ken Cuccinelli (pictured), a darling of social conservatives and the Tea Party movement.

    The brief purports to offer an argument about marriage federalism-that every state should be able to carry out its own ideas without interference either from Washington or pesky federal judges. But as I'll explain, these attorneys general -- call them the Cuccinelli 13 -- don't really believe their own argument. They just want their states to be able to keep discriminating against gays and lesbians.

    As you might expect from a group of mostly red states (11 of the 13 AGs are Republicans), the brief rehashes familiar social-conservative themes: marriage is about procreation; children are better off in heterosexual homes; it's a slippery slope from gay marriage to legalized polygamy and incest; the "traditional" understanding of marriage should be constitutionally dispositive.

    What's interesting, though, is that the brief frames these arguments within a sweeping claim that states have "sovereign primacy over marriage." "Primary state authority over family law," they write, "is confirmed by definite limitations on federal power" and is a "bedrock principle of federalism."

    Taking aim at the judge who invalidated California's Proposition 8, the Cuccinelli 13 insist that "federal judicial power threatens to undermine state determinations of marital or parental status," and that the district court's "fiat" (a silly characterization of a closely reasoned 136-page opinion) "exceeded its judicial authority." But this is an obtuse argument. The brief attempts to conflate the "domestic relations exception"-a judge-made abstention doctrine that deprives federal courts of jurisdiction over intrafamily disputes like divorce or child custody-with the power of federal courts to review the constitutionality of state laws. Faulty arguments aside, the Cuccinelli 13's real point is that if states want to keep discriminating against same-sex couples, federal courts just need to butt out; they have no right to question majoritarian ideas - what the AGs call "the acquired cultural wisdom of citizens" - about marriage.