The Volokh Conspiracy

And manages to do what nobody else has done: unite supporters and opponents of same-sex marriage.  Marriage Equality Rhode Island says it establishes “second-class citizenry.”  The National Organization for Marriage says it is “disappointing and dangerous.”  Caught in the middle were legislators, including the openly gay head of the state house, and Governor Lincoln Chafee (expected to sign the bill), who predicted this was the most they could do for at least a couple of years. 

The main issue for the major national gay-rights groups, expressed in a letter to the governor urging a veto, is the breadth of the religious-objector exemptions in the bill.  Every new state proposal to recognize same-sex relationships seems to raise the bar higher for these exemptions, and it appears the bar is now too high for these groups.  I haven’t seen the language yet so I won’t offer an opinion here on the weight of their concerns.

It looks like a long-anticipated vote on whether to approve same-sex marriage will be held in the state senate, perhaps tonight.  As of now, 31 of the 62 senators have publicly supported it. Two Republicans are counted among those 31, and the search has been on for at least one additional GOP vote. The price for Republican support — at least the price we know of — has been a fairly broad religious exemption.  The state house would need to agree to the new language, which seems likely. 

The senate majority leader Dean Skelos released a statement tonight announcing a vote and thanking Gov. Cuomo for bending on religious liberty:

 I read this between the lines — especially the appreciation for relgious-liberty protection — as a signal that the votes are there to pass the bill.  But the New York legislature seems to be an especially treacherous and tortured place, so we’ll see what happens.

UPDATE: New York Senate live stream here.  The vote may not occur until late tonight.

SECOND UPDATE: The bill passed, 33-29.

The proponents of Prop 8 sought to have Judge Vaughn Walker disqualified from ruling in the Prop 8 case. They argued that he had a substantial interest in the case because he was in an (undisclosed) long-term same-sex relationship and might seek to marry if SSM were permitted in California. Opinions in the blog commentariat vary, but most legal ethics experts seem to think Walker was not required to recuse himself and should not have been disqualified.  My colleague Richard Painter believes the motion to disqualify Walker and vacate the judgment was frivolous, though he questions the merits of Walker’s ruling for SSM. 

Today, Chief Judge James Ware denied the motion. Judge Ware writes: “The sole fact that a federal judge shares the same circumstances or personal characteristics with other members of the general public, and that the judge could be affected by the outcome of a proceeding in the same way that other members of the general public would be affected, is not a basis for recusal or disqualification under [federal law].” He also warns that requiring Judge Walker to disclose his relationship would set a harmful precedent, promoting the disclosure of “highly personal information (e.g., information about a judge’s history of being sexually abused as a child), however irrelevant or time-consuming.” Finally, he argues that Judge Walker should no more be presumed to be incapable of rendering an impartial decision than a female judge should be presumed biased in a case in which women seek legal relief.  Let the avalanche of analogies and counter-analogies begin!

The supporters of Prop 8 will appeal Judge Ware’s decision.

UPDATE: NRO’s Ed Whelan has a trenchant critique of Ware’s decision here and here.

The U.S. Bankruptcy Court for the Central District of California, in an opinion signed by 20 of the court’s 25 judges, has held that Section 3 of the federal Defense of Marriage Act unconstitutionally bars a married same-sex couple from filing a joint bankruptcy petition. The issue arose when the couple, one of 18,000 such couples legally wed in California in 2008, endured long illnesses, hospitalization, and unemployment.  This left them unable to pay their bills, so they filed for bankruptcy protection. The court’s opinion, which focuses on this narrow bankruptcy slice of the overall federal marriage pie, shows how DOMA could die from a thousand small cuts.

The couple filed the petition on February 24, a day after the Justice Department announced it would no longer defend Section 3 of DOMA, which defines marriage for federal purposes as the union of one man and one woman.  The Bankruptcy Trustee moved to dismiss the petition on the grounds that federal bankruptcy law did not apply to married same-sex spouses because of DMA.  The House Bipartisan Legal Advisory Group — which is defending DOMA in lieu of the Justice Department — was granted a continuance to consider whether to intervene.  The time expired with no action from the HBLAG, a non-response the court considered “noteworthy.”

On the merits, the court held that Section 3, as applied to married same-sex couples filing joint bankruptcy petitions, violate equal protection principles. The court relied on the arguments for heightened scrutiny of sexual-orientation discrimination contained in Attorney General Eric Holder’s letter announcing the new position of the DoJ on DOMA. In addition, relying on Judge Walker’s decision in the Prop 8 case, it held that the DOMA marriage definition discriminates on the basis of sex.

Applying heightened scrutiny, the court determined that none of the justifications for DOMA hold up very well.  Keeping an already married same-sex couple from filing a joint bankruptcy petition would not plausibly encourage responsible procreation and child-bearing, help heterosexual marriages, defend traditional morality, or save on administrative costs.

While most of the opinion analyzes the issue in this bankruptcy-focused way, it does contain some rather broad statements that suggest larger constitutional problems for DOMA in its numerous other potential applications:

(HT: Chris Geidner)

Although individual members of Congress have every right to express their views and the views of their constituents with respect to their religious beliefs and principles and their personal standards of who may marry whom, this court cannot conclude that Congress is entitled to solemnize such views in the laws of this nation in disregard of the views, legal status and living arrangements of a significant segment of our citizenry that includes the Debtors in this case. To do so violates the Debtors’ right to equal protection of those laws embodied in the due process clause of the Fifth Amendment.

The court concludes by invoking Justice Douglas’ love letter to marriage in Griswold v. Connecticut:

We deal with a right of privacy older than the Bill of Rights—older than our political parties, older than our school system. Marriage is a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred. It is an association that promotes a way of life, not causes; a harmony in living, not in political faiths; a bilateral loyalty, not commercial or social projects. Yet it is an association for as noble a purpose as any involved in our prior decisions.

 

They’re not quite registering June brides, but the joyous end of American civilization has legislatively spread to Cook County and the rest of the Land of Lincoln. Starting today, the state is granting all of the rights and privileges of marriage under state law to same-sex couples. 

With all the recent excitement in Minnesota over the effort to ban same-sex marriages in the state constitution, I neglected to mention that civil unions have also been legislatively approved in Delaware (effective January 1).  It’s the eighth state to provide comprehensive recognition to same-sex relationships under the title of civil union or domestic partnership. Five states recognize same-sex marriages. A few others provide a more limited set of legal protections.

She was my boss in 1992-93, when I clerked for the court. Among other things, don’t refer to the appellate panel as “you guys.”

Last night the Minnesota legislature capped a three-week end-of-session effort to ban same-sex marriage.  The state senate approved the amendment on May 11.  It then went to the state house of representatives. In the end, the vote was 70-62 in favor, two more than the 68 needed for passage onto the ballot.  Sixty-eight Republicans (the exact number needed) and two Democrats voted for it.  Four Republicans voted against it, putting their legislative careers on the line, as did 58 Democrats, some of whom represent socially conservative districts. 

The debate lasted more than five hours. You can watch it here, beginning at the 22:30 mark.  (In the background you can hear the chants and songs of hundreds of amendment opponents outside the chamber.)  But debate really isn’t the word for it. As happened in the committee hearings prior to the floor votes, no amendment supporters other than the sponsor spoke up in favor of it.  Even he offered no substantive defense of it, saying only that the people should be allowed to decide the issue.  They sat there, said nothing, and voted “yes.”  There was political calculation in that silence, to be sure, but having talked with many legislators I also know there was some shame in it. 

On the other side, there was a speech by first-term Rep. John Kriesel (R-Cottage Grove), a war hero, that should be remembered when the history of the same-sex marriage movement is finally written. It’s the “Hell No” speech, and can be found here.

During the debate, amendment opponents sang, chanted, and watched the proceedings on monitors.  They sang songs like Amazing Grace, This Land Is Your Land, the National Anthem, and most memorably for me, We Shall Overcome.  Below was the first rendition of many last night.  Forgive the shaky video, my hands were trembling as I tried to record the moment:

Eighteen months from now, on November 6, 2012, Minnesota will become the first state to reject one of these amendments.

Today there’s a reasonable chance the Minnesota House of Representatives will be debating a proposed constitutional amendment defining marriage as the union of one man and one woman.  Since the session ends Monday, such a debate would need to happen soon, if it is going to happen at all.  With Republicans holding a 72-62 edge in the house it had been thought by nearly everyone that passage was a foregone conclusion, but there has been a bump or two or three along the way, with two Republicans openly opposing the ban and others refusing to say how they will vote.   In committee hearings and in the senate floor debate last week, amendment supporters were almost silent — offering no substantive arguments against gay marriage — while opponents railed against the ban in speech after speech.  It will be interesting to see if pro-amendment lawmakers continue to sit on their hands today.

The amendment has already passed the state senate and if it passes with a majority in the house it will be placed on the ballot for voter approval in Nov. 2012.   The house is in recess until 12:00 Noon central time today.  After that you can watch the session live here.

UPDATE:  Expect debate on the amendment to begin no earlier than 6 p.m., assuming it comes to the floor tonight, which now seems likely.  This may be close.

On the floor of the state senate last week, the sponsor of an amendment defining marriage as the union of one man and one woman was asked by a colleague how the amendment would protect her marriage:

For the full context of the exchange between the senators, see here.  The state senate then voted to pass the amendment, 38-27.

The GOP sweep in Minnesota last fall was a mile wide and an inch deep.  A switch of a few hundred votes in a few key districts would have left the house and senate in Democratic hands. Republicans won on promises to balance the budget, limit taxes and spending, and make the state more business-friendly. Social issues were almost totally absent from the campaign. Nevertheless, a constitutional amendment excluding gay couples and their families from marriage has been making its way quickly through the Minnesota legislature. If approved, it would go on the ballot in November 2012 in a popular referendum, where it would have to get a majority of all votes cast in a high turnout year. It had seemed the amendment would sail through the state legislature. But now it faces rising Republican opposition. 

The GOP objectors publicly known so far include a state senator who voted in committee to table the amendment on Friday.  Last year, she called an anti-gay marriage amendment “a sword to hurt people, to identify people as different and create disparities.”

Also opposed is a GOP house member, a veteran who lost his legs in Iraq. He has publicly said that he “learned the hard way” that you only live once and it’s important to find someone you love.  He called the proposed amendment ”just wrong,” and declared, “There is not anything that can move me on this.” Apparently, if you’ve faced death in combat, the prospect of a primary opponent doesn’t intimidate you.

Other Republican legislators have questioned the need to constitionalize the issue. At the very least, there is considerable doubt about pushing it right now in the middle of a budget battle with the Democratic governor — it’s a distraction from the party’s core message and agenda. The amendment could be taken up next year and still appear on the 2012 ballot.

In this morning’s Minneapolis Star-Tribune, former Bush White House Counsel and a colleague of mine, Richard Painter, makes the Republican case against a proposed amendment banning same-sex marriage.  Painter opposes the amendment as a matter of principle, good politics, and business:

Minnesota marriage laws have been well-settled for a long time. Marriages must be between a man and a woman. There is no indication that state courts will wade into this area and legislate from the bench, and there is very little chance that the Minnesota Supreme Court would allow them to do so. . . .

Furthermore, the proposed amendment would force Minnesotans to engage in a divisive debate over a ballot measure. That debate would be particularly damaging for Republicans, who are divided on this issue.

The debate would also be costly and might encourage outside organizations to pour money into Minnesota — not only to defeat the ballot measure but to defeat Republican candidates. . . . 

Yet another danger is the damage this ballot measure could inflict on our economy. At present, Minnesota does not stand out among states that do not allow same-sex marriage.

We are not viewed as “homophobic” because we refuse to change existing law. If, however, we ask all Minnesotans to vote on the definition of marriage in 2012, it is certain that one side or the other will be dissatisfied with the result.

Companies with employees who feel strongly on this issue will not want to locate here.

At a time when many Minnesotans are unemployed and business owners are struggling with lagging sales and rising costs, we do not need a ballot measure on a divisive social issue that drives people away from our state.

Minnesota should send the message that we are open for business — that we are open to all people — and that we are serious about promoting the interests of businesses and their employees. This ballot measure does exactly the opposite.

If the issue reaches the floor of either the house or senate it would likely happen this coming week.

Here’s my take on the K&S “kerfuffle,” Orin’s mot juste.  I don’t disagree with much of what my fellow Conspirators have said, especially regarding the heavy-handed talk of boycotts and secondary boycotts. I don’t think we pull out the heavy artillery of a boycott of lawyers taking on causes and clients we despise except in the rarest cases, none of which occur to me at the moment (at least in the real world rather than the law-school hypotheticals world).  Defending a constitutionally defensible but very bad law is not such an occasion. 

But I do think there is a way to understand K&S’s decision as something more than just the tale of a cowardly sheriff handing Atticus Finch over to the lynch mob.  I consider this controversy an episode in the historically fraught relationship between the legal profession and gays and lesbians:

Gay-rights supporters have transformed the law and the legal profession, opening the doors of law firms, law schools and courts to people who were once casually and cruelly shut out because of their sexual orientation.

But it was a process that took a half-century to unfold. In 1961, a Harvard-trained astronomer, Frank Kameny, stood alone against the federal government. Fired from his federal job simply for being gay, he wanted to petition the Supreme Court. But at a time when all 50 states still criminalized sodomy, even the American Civil Liberties Union declared it had no interest in challenging laws “aimed at the suppression or elimination of homosexuals.” Mr. Kameny wrote his own appellate brief; without comment, the court turned him away.

Over the next quarter-century, lifted by gales of change in sexual morality and in the status of women, gay-rights advocates mobilized at every level of the legal profession. In the late 1960s, they successfully challenged the antigay civil service policies under which Mr. Kameny had been discharged. In 1973, a small group of gay lawyers formed the Lambda Legal Defense and Education Fund, enlisting the help of prominent heterosexual lawyers. They drafted legislation protecting gays from discrimination in housing and employment.

At the same time, gay-rights supporters began lobbying law schools, and then professional organizations like the American Bar Association, to adopt nondiscrimination policies. With these in place, they pressured schools to exclude law firms from on-campus recruiting unless they agreed not to discriminate against gay students in hiring. The Association of American Law Schools endorsed this approach. These developments paved the way for firms that had once fired suspected homosexuals to adopt their own nondiscrimination policies.

By 2003, not a single major national law firm supported the Texas sodomy law before the Supreme Court, yet there were constitutionally defensible arguments to be made even in the case of that very nasty law. This was not an abandonment by those firms or prominent lawyers of a legal duty to defend an unpopular cause or client.

One difference between the K&S case and Lawrence is that K&S actually undertook the representation for about a week.  It’s hard for me to work up much dudgeon about that based on harm to the client (the House) or to the zealous defense of its cause (DOMA).  Another difference is the potential of blacklisting K&S, and the possibility that fear of such blacklisting, rather than an awakening to the firm’s own principles and priorities, is really what drove the decision. I suppose this would have been the case with a firm that considered defending the Texas Homosexual Conduct law, too.

Personally, I have no problem with a law firm or an individual lawyer representing Congress in a case like this. In fact, the better the lawyer the better and more interesting the contest will be. Go to it, Mr. Clement! We’ll see you in the arena. Much more important to me as a moral matter is the kind of argument made and the tone in which it is offered. I expect DOMA’s new counsel will not indulge the rancid gay-baiting we saw in many of the amicus briefs supporting the Texas sodomy law.

But given our profession’s checkered history, I can understand why others would be far more sensitive about an important law firm’s decision to use its considerable power to defend, even just as a constitutional matter, the exclusion of married gay couples and their families from all federal benefits.

Tobias Wolff thinks so, going so far as to say that national gay organizations should now divert their meager resources away from relationship recognition and other anti-discrimination efforts in order to protect unions from evil Republicans.  The basic idea is three-fold: (1) gays are like all Americans and Americans need unions; (2) unions have supported gays, so gays owe them; (3) unions are part of the progressive and liberal coalition gays need for their own defense.

Thom Lambert disagrees.  His entire response to Wolff is worth a read, but here are some key points:

Surely the fact that a group expresses support for gay equality and offers gay people various resources does not create a “reciprocal obligation” on the part of gay people to support all that group stands for.  Does Wolff think gay people have an obligation:

• to support Goldman Sachs, Bank of America, and Citigroup in their opposition to derivatives regulation? 
• to support Monsanto’s efforts to avoid regulation of genetically modified organisms and rBST? 
• to support Aetna’s opposition to various mandates under Obamacare? 
• to encourage additional financial support for AIG? 
• to endorse a BP plan to limit liability for oil spills? 
• to call their congressmen to echo requests by Chevron and Shell to increase offshore oil drilling? 
• to join Bristol Myers Squibb and GlaxoSmithKline in their efforts to prevent the illegal production of patented AIDS drugs in Africa? 
• to support AT&T’s proposed merger with T-Mobile? 
• to back a plan by Waste Management, Inc. to streamline the permitting process for landfills?  

I doubt he would call on gay people to take any of these stances.  But each of the listed companies — Goldman, B of A, Citigroup, Monsanto, Aetna, AIG, BP, Chevron, Shell, Bristol Myers, GSK, AT&T, and Waste Management — is included on the Human Rights Campaign’s list of the “top businesses that support equality for lesbian, gay, bisexual and transgender employees.”  . . .

This brings us to Wolff’s last, undoubtedly most important, argument: that gay people should support organized labor now so that organized labor feels compelled return the favor when the gays have an issue to push.

Here, I depart from Prof. Wolff — and from the herd of independent minds comprising the leadership of the gay community — on a most fundamental level.  At this point in American history, I believe the best way for gay people to make equality gains is via a bottom-up, not a top-down, approach.  Gays should stop running to the government for additional protections from private actors (though they should vigorously oppose state-sponsored discrimination), and should instead concentrate on changing the hearts and minds of their friends and neighbors. 

And guess how you do that?  By being yourself.  By going through your workaday life, being your “best self” and expressing your own beliefs and convictions — religious, political, or otherwise — because they’re yours, not because someone dictated that you must, by virtue of your sexual orientation, hold them.

So, if you’re a gay person and you think collective bargaining by public sector unions is bankrupting state and local governments while fattening the civil service class, go gripe about it to your Republican neighbor over a beer.  In doing so, you’ll be promoting the sort of social change that will ensure real equality for gay people in the future.

I’d add that Wolff’s argument comes from a long political tradition, going back at least to the 1950s, which maintains that gay rights are inextricably tied to a host of causes supported by self-styled progressives — everything from abortion rights to various left-wing revolutionary movements.  Lambert is part of an emerging group of dissenters from the dominant progressive tradition in gay politics. It includes people who support gay rights but also support the rights of the unborn, oppose gun-control legislation, want taxes kept low, think social welfare programs are wasteful and counter-productive, doubt the value of national healthcare programs, and so on.  They may be wrong about any or all of these things, but it is hardly obvious that sexual orientation — either as a matter of principle or as a matter of political strategy – should dictate the stands they take.

In his election bid in 2008, President Obama explicitly stated several times that he opposed allowing same-sex couples to marry (“God is in the mix,” he once said), although he favored giving them all of the legal rights and protections of marriage through civil unions. At the same time, he also said he opposed efforts like Prop 8 to set in stone the traditional definition of marriage he said he favored.  Some of us doubted that he really opposed gay marriage and had a hard time trying to reconcile his various statements on the issue. Recently, the president said that he was continuing to ponder his position, a signal that he was moving toward fully and publicly supporting gay marriage.

We now seem to have an implicit answer from the president about where his reflections have led him. In a letter to Congress, AG Eric Holder elaborates on why the administration believes DOMA Section 3 is unconstitutional. Previously, in defenses of DOMA, which defines marriage as the union of one man and one woman for federal purposes regardless of state law, the administration explained that there was a rational basis for the law. It preserved the status quo while states continued to experiment with various ways to recognize gay families. This was a weak defense, rejecting the most prominent justifications for the traditional man-woman definition of marriage, including promoting responsible procreation by heterosexual couples and encouraging biological parents to raise their children within marriage.

It was hard, even yesterday, to concoct a constitutional defense of traditional marriage in a world where these standard justifications (about procreation and child-rearing) had been rejected as unrelated to a ban on same-sex marriage. At most, I think, one might have said yesterday that the DOMA challenges involved federal refusal to recognize actual same-sex marriages while granting full recognition to opposite-sex marriages. But, one might have argued, a federal court decision holding that DOMA was unconstitutional did not necessarily mean states would be constitutionally required to recognize SSMs. That distinction might have been justified yesterday by saying, for example, that a state’s interests in responsible procreation and traditional child-rearing were stronger (more rational, more legitimate) than the federal government’s identical justifications for DOMA Section 3.  Once a state had given up on opposite-sex-only marriage, the justifications based on procreation and child-rearing to deny same-sex couples recognition at the federal level had been drained of any real significance.

The DOJ’s new position withers even that thin reed. The AG’s letter makes several key points clear.  First, limiting marriage to one man and one woman discriminates on the basis of sexual orientation, a conclusion many courts have resisted by offering that gay people are still free to marry opposite-sex partners. Second, the DOJ now believes that all discrimination on the basis of sexual orientation should be subject to some heightened scrutiny (specifically, intermediate scrutiny), not simply rational basis review. That’s because, according to the DOJ, there has been a history of discrimination against gays, because sexual orientation is immutable (citing Judge Posner’s Sex and Reason) and should not have to be hidden (citing the recent repeal of DADT), because gays lack political power (witnessed by the laws attacked in Romer v. Evans and Lawrence v. Texas), and because we have now recognized through changes like the repeal of DADT, changes in public attitudes, and judicial decisions like Romer and Lawrence that homosexuality does not affect one’s ability to contribute to society.  Finally, argues the DOJ, excluding gay couples from marriage cannot surive intermediate scrutiny.

The Obama administration has now formally put the weight and authority of the Executive Branch behind the proposition that government discrimination against gays and lesbians is unconstitutional under the equal protection principles of the Fifth and Fourteenth Amendments. Since marriage between two people of the same sex, whether unrecognized by the federal government under DOMA or barred by the states under their own marriage laws, discriminates against gays and lesbians and cannot survive heightened scrutiny, it follows that the laws of 45 states barring gay marriage are unconstitutional. While the DOJ won’t formally be attacking state marriage laws in federal courts, its views do carry some persuasive heft.

It’s possible, I suppose, for the president to continue to thread the ever-narrowing thin needle between declaring that something unconstitutional might also be good policy. He may not yet be ready to say on national television that he favors gay marriage. But in light of the DOJ’s fully elaborated constitutional analysis, he has said with deeds what he has not quite yet said with words.

The DOJ has just announced, in the context of two cases challenging the Defense of Marriage Act in the Second Circuit, that it will no longer defend the law against constitutional attack.  In a press release, the Attorney General announced:

After careful consideration, including a review of my recommendation, the President has concluded that given a number of factors, including a documented history of discrimination, classifications based on sexual orientation should be subject to a more heightened standard of scrutiny. The President has also concluded that Section 3 of DOMA, as applied to legally married same-sex couples, fails to meet that standard and is therefore unconstitutional. Given that conclusion, the President has instructed the Department not to defend the statute in such cases. I fully concur with the President’s determination.

This is, obviously, very big news, and represents a significant shift in the DOJ’s litigation posture in the pending DOMA cases.  The DOJ justifies the shift by arguing that in the earlier DOMA cases, like Gill v. OPM, governing authority in the First Circuit had precluded the application of heightened scrutiny to classifications based on sexual orientation.  But the Second Circuit, notes the Department, has never decided the level of scrutiny applicable to discrimination burdening gays and lesbians.  At the same time, the DOJ says that it will continue to enforce DOMA until Congress repeals it or until there is a definitive judicial decision striking it down.

There are many questions to ponder, including: who will now defend DOMA and will they have standing to do so?  The DOJ suggests that members of Congress may be able to defend the federal law, but that is far from clear under the Court’s standing precedents, like Raines v. Byrd, written by Chief Justice Rehnquist. 

I’m sure I’ll have more to say about the DOJ’s announcement.

Today, at the request of the 9th Circuit, the California Supreme Court agreed to address the question whether there is anything in California law that would give the official proponents of Prop 8 standing in the federal case challenging it, Perry v. Schwarzenegger.  The California court announced a briefing and oral argument schedule that will take us out until at least September, and probably beyond, while we await some word. 

One issue is whether the Prop 8 proponents can show they have suffered some “personal injury” — one that is particular to them — sufficient to let them sue in federal court under Article III.  That injury might arise because (1) Judge Vaughn Walker held Prop 8 unconstitutional, and/or because (2) they face imminent injury if same-sex couples start to wed when Walker’s ruling is enforced. I am not sure what California law could tell us about the answers to either of those questions that we can’t know independently, but I suppose that’s why we have briefing. 

Another possible basis for standing, hinted at in the 9th Circuit’s certified question to the California court, is that state law gives proponents standing to defend the law when state officials refuse to do so, regardless of any personal injury they may have suffered.  Does California law put them in the shoes of state officials?

As a constitutional matter, the Ninth Circuit doesn’t have to follow whatever advice the California Supreme Court gives it. Standing is an independent federal matter. Prop 8 proponents may have standing under federal law even if the the state court holds that state law doesn’t grant it to them; conversely, they may have no standing even if state law gives them some special status or “injury” to claim. But if the 9th Circuit went to the trouble of certifying the question, and will now wait at least six months for an answer, it seems likely the state court’s decision will have a strong influence on the result. 

Whatever the outcome in the state court and the 9th Circuit on the standing issue, the final resolution of the Prop 8 case has likely been delayed well into 2012 and beyond. That has one immediate consequence. It makes any effort to repeal Prop 8 very unlikely in November 2012. Donors, already hesitant to fund a repeal drive while Perry moves forward, will be even less likely to do so while there is so much legal flux and no resolution in time to put a ballot effort together.  That means that if Prop 8 is to be eradicated before at least November 2014 it must be by judicial decision.

From last semester, a comment on the reading materials assigned for the course: “The pages of the casebook drain highlighters, not necessarily because there is a lot to highlight, but more because the paper is super absorbent.”

The Senate voted 63-33 to cut off further debate on a bill already passed by the House to begin repealing “Don’t Ask, Don’t Tell,” the ban on military service by gay men and lesbians.  A final vote will be held soon.  (Watch the final debate and vote here.)  The president will sign the bill, which requires a short certification process before repeal is final. 

This means the end of a  cruel and ultimately counter-productive anti-gay policy that kept a few thousand people from serving and put many times that in fear of expulsion from service.  What’s more, the change occurred legislatively. The president, the Democrats in Congress, Sen. Joe Lieberman, and six Senate Republicans who voted for repeal (Scott Brown (MA), Susan Collins (ME), Mark Kirk  (IL), Lisa Murkowski (Alaska), Olympia Snowe (ME) and George Voinovich (OH)) deserve praise.  Credit is also due to the Servicemembers Legal Defense Network, which worked tirelessly for two decades to get rid of the policy.

Mostly, I’m happy for the men and women, some of whom I know, who will now be able to serve their country without fear of discharge because of their sexual orientation.

UPDATE: The final Senate vote was 65-31.  Republican Senators Burr (North Carolina!) and Ensign (NV) joined the original six who voted for repeal.

Today the state legislature passed a civil unions bill (full text here), granting same- and opposite-sex partners all of the legal rights, obligations, and privileges of spouses under state law.  The vote was 32-24 in the state senate today, following approval in the state house yesterday.  The governor will sign the bill.

There are a couple of noteworthy provisions in the bill. First, the new status is available to opposite-sex spouses who choose not to marry. This makes the Illinois law different from other civil-union laws, like the ones in California, Oregon, and New Jersey, which generally make the equivalent status available only to same-sex couples on the theory that opposite-sex couples can marry. (California has a limited exception for opposite-sex partners when one is at least 62 and eligible for Social Security benefits.)

Second, the bill contains a “reciprocity” provision requring the state to recognize out-of-state same-sex marriages or civil unions.

Illinois came a little later to same-sex partnership recognition than I expected, but it now joins a large state population to the one-quarter or so of all Americans living in a jurisdiction with same-sex marriage or its equivalent.

The Pentagon has now released its 256-page report on repealing Don’t Ask, Don’t Tell, called formally the “Report of the Comprehensive Review of the Issues Associated with a Repeal of ‘Don’t Ask, Don’t Tell.’”   I won’t hide the ball.  After reviewing tens of thousands of questionnaires and polling data from active duty service members, interviewing military leaders, analyzing past studies on the policy, and consulting the experience of foreign militaries, the Report concludes that DADT could be repealed with “low” risk of negative effects on the military.  There is a fairly comprehensive “Executive Summary” at the beginning of the Report for you executives out there who don’t have the time or inclination to read the entire thing. And for the really high-flying execs, here’s the key paragraph in the Exective Summary:

Based on all we saw and heard, our assessment is that, when coupled with the prompt implementation of the recommendations we offer below, the risk of repeal of Don’t Ask, Don’t Tell to overall military effectiveness is low. We conclude that, while a repeal of Don’t Ask, Don’t Tell will likely, in the short term, bring about some limited and isolated disruption to unit cohesion and retention, we do not believe this disruption will be widespread or long-lasting, and can be adequately addressed by the recommendations we offer below. Longer term, with a continued and sustained commitment to core values of leadership, professionalism,and respect for all, we are convinced that the U.S. military can adjust and accommodate this change, just as it has others in history.

I found intriguing one particular part of the report. The expansive survey of active duty personnel revealed that about 50-55% predicted repeal of DADT would have either no or mixed effect on the military; another 15-20% thought it would have a positive effect; and 30% believed it would have a negative effect (the negative group was highest in the Marine Corps, 40-60%, depending on the unit).  At the same time, 69% of personnel said they had actually served with a gay person. Of these 92% said the unit’s ability to work together was either very good, good, or neither good nor bad. Of greatest potential concern was the greater anxiety of personnel in active combat units when asked about serving with openly gay people. But the survey shows that while problems are expected a priori in these units, they rarely arise in real life.

For example, when those in the overall military were asked about the experience of working with someone they believed to be gay or lesbian, 92% stated that their unit’s ‘ability to work together,’ was ‘very good,’ ‘good’ or ‘neither good nor poor.’ Meanwhile, in response to the same question, the percentage is 89% for those in Army combat arms units and 84% for those in Marine combat arms units—all very high percentages. (emphasis added)

This is a common phenomenon is public policy disputes about homosexuality. Huge and catastrophic consequences are predicted almost any time some affirmative measure is proposed, like ending the ban on federal service, granting security clearances, eliminating sodomy laws, passing hate-crimes or antidiscrimination laws, and so on.  Yet the apocalypse never comes.  A few initial grumbles are heard, but these quickly subside and life goes on pretty much as before, except that a new group of people has had legal and stigmatic burdens lifted from them. The same dynamic is at work today on the issue of same-sex marriage.  Pre-SSM, much doom and gloom is expected; post SSM, calm and ordinariness break out. (For example, 92% of Iowans polled in the November election reported that SSM had no effect on their own lives.)

And this hysterical form of argument has worked remarkably well, at least until today, on the issue of allowing gay men and lesbians to serve their country honorably in the military.  Now, for the first time, we have a formal conclusion from the Defense Department itself, backed up by the President, the Secretary of Defense, and the Chairman of the Joint Chiefs,  that it does not need DADT to run an effective fighting force. As one special operations fighter told the Committee, “We have a gay guy [in the unit]. He’s big, he’s mean, and he kills lots of bad guys. No one cared that he was gay.” It’s now up to the U.S. Senate to end a misbegotten policy that has produced needless misery and expense, and that outlived its usefulness the day it was born.

The panel hearing the Prop 8 appeal on December 6 will be Judges Stephen Reinhardt, Michael Daly Hawkins, and N. Randy Smith. It’s a good draw for opponents of Prop 8. The two issues on appeal are whether the Prop 8 proponents have standing to appeal and, if so, whether Judge Vaughn Walker correctly held the anti-gay marriage initiave unconstitutional.

(HT: Rex Wockner)

I learned of Greg’s death, noted by John below, early this evening. John is right on all accounts about Greg as a superb lawyer and person.

Greg was a co-clerk of mine with Judge Edith Jones, 1992-93. We kept in touch occasionally over the years, as I watched his rise in legal circles in Texas and beyond. There is no doubt he was headed for much more success.  We had our differences on some issues, and found ourselves on opposite sides at a U.S. Senate hearing in 2003 on the subject of DOMA.  He was a formidable intellectual presence. He was also never anything less than decent, respectful, and humane. I had enormous respect for him, as did anyone who knew him. I wish the best for his sons, wife, and the rest of his family.

As expected, the Court has upheld the Ninth Circuit’s stay of a district court’s injunction against DADT. There was apparently no dissent on the Court, although Justice Kagan took no part in the decision, presumably because she headed the DOJ during much of the litigation defending the constitutionality of the ban on gay military personnel.

That leaves the short-term fate of DADT in the hands of President Obama and Congress.

The stay is effective while the appeal is pending, meaning that DADT is in effect until at least early 2011 (or until it is repealed by Congress). The opinion is here. Judges O’Scannlain and Trott were in the majority; Judge Fletcher partially dissented, preferring to maintain the injunction during the appeal only as to actual discharges.  Rick Hasen comments here.

The majority noted that acts of Congress are presumed constitutional, especially when Congress is exercising its constitutional power “to raise and support armies.” It also noted that the district court’s decision holding DADT unconstitutional conflicts with decisions in four other circuits, not just in the sense that these other circuits’ substantive conclusions deserve respect but that the district court’s world-wide relief would actually interfere with their conclusions in their geographic areas.

The Court accepted the Obama DOJ’s bare assertions that a quick end to DADT would result in “immediate harm” and “irreparable injury” to the military. It also accepted the assertion that allowing gays to serve openly would require unspecified “training” and “guidance” of military personnel, especially combat forces, which cannot be done in a short time frame.

Overall, while the decision says nothing directly about the ultimate merits of the constitutional challenge to DADT, it does reinforce the heavy burden the Log Cabin Republicans are going to face on appeal.  Military policy is an area where courts rarely intervene, even if the justifications for the policy are very thin (as they are for DADT) and even if similar government policies would be unconstitutional if applied to civilian life. The writing is on the wall for this litigation.

(HT: Chris Geidner)

At the request of President Obama’s Justice Department, the Ninth Circuit has stayed, at least for now, an order from California District Judge Virginia Phillips halting enforcement of DADT. The Ninth Circuit panel consisted of Judges O’Scannlain, Trott and Fletcher. The order states:

This court has received appellant’s emergency motion to stay the district court’s October 12, 2010 order pending appeal.  The order is stayed temporarily in order to provide this court with an opportunity to consider fully the issues presented.

Appellee [Log Cabin Republicans] may file an opposition to the motion for a stay pending appeal by October 25, 2010.  To expedite consideration of the motion, no reply shall be filed.

This is not very surprising. Given the importance of the change in military policy and the extraordinary scope of Judge Phillips’ order, I would also expect the Ninth Circuit to enter a stay pending appeal.  And if it doesn’t, I’d expect that the Supreme Court will.

Meanwhile, with investigations of service members for homosexuality halted and with openly gay men and women enlisting over the past week, the clock has been ticking.

UPDATE: Rick Hasen has some thoughts on the panel and the timing of the LCR reply.

(HT: Rex Wockner/Chris Geidner)

The California federal judge who decided on September 9 that Don’t Ask, Don’t Tell is unconstitutional has now issued an injuction ordering the military to immediately stop enforcing it.  The order:

(2) PERMANENTLY ENJOINS Defendants United States of America and the Secretary of Defense, their agents, servants, officers, employees, and attorneys, and all persons acting in participation or concert with them or under their direction or command, from enforcing or applying the “Don’t Ask, Don’t Tell” Act and implementing regulations, against any person under their jurisdiction or command;

(3) ORDERS Defendants United States of America and the Secretary of Defense immediately to suspend and discontinue any investigation, or discharge, separation, or other proceeding, that may have been commenced under the “Don’t Ask, Don’t Tell” Act, or pursuant to 10 U.S.C. § 654 or its implementing regulations, on or prior to the date of this Judgment.

The good news for gay servicemembers, and for what our Commander-in-Chief says is a matter of national security, is probably temporary.  The Ninth Circuit will likely stay the effect of this order and, if it does not, the Supreme Court will do so.