Summary: developments in Prop. 8 trial, DADT, etc.
Posted by socgradmama on January 9, 2011
I think it’s useful to round-up latest important equality info into one place – not that I (or anyone) can actually accomplish such a task fully but any effort toward that goal is surely useful. So here’s the latest on the developments in the Prop. 8 case, DADT, and other interesting happenings in the struggle for equality.
On January 4th, the Ninth Circuit issued a ruling on Prop.8. However, this ruling was not a ruling on the merits of the case but rather, did two things. First, it dismissed Imperial County’s claim to standing. Second, it certified a “question” to the California Supreme Court, asking that Court to rule whether the (private) proponents of Proposition 8 have legal standing according to CA state law. The Ninth Circuit needs this information in order to make a determination as to whether the proponents have standing in federal court.
Courage Campaign held a live chat/conference call with attorneys Shannon Minter and Chris Stoll to answer questions about the ruling. I’ve read through the live chat and here are the answers to some questions that are potential “common questions.”
- What is the time frame for the CA Supreme Court to answer the question?
There is basically no time frame. Opinion seems to hold that we’re looking at at least several months.
- What are the potential outcomes?
If the CA Supreme Court rules that the proponents have standing, the Ninth Circuit will rule on the Prop’s constitutionality. If the CA Supreme Court rules that there the proponents have no standing, the Ninth Circuit would likely dismiss the case.
- Can the CA Supreme Court refuse to answer the certified question?
Yes. I’m not clear what would happen then but at that point, according to Chris Stoll, it is as if the State is telling the Federal Court to “use your own best judgment” (http://prop8trialtracker.com/2011/01/04/live-on-p8tt-you-got-prop-8-questions-we-got-answers/).
- There is a lot of analysis of this latest development. Overall, opinions are that this looks good for opponents of the case. First, the fact that Imperial Cty was NOT granted standing is a good thing. According to Shannon Minter, if they had been granted standing, it would have indicated that the appeal was valid and the Ninth Circuit would have had to rule on the merits of the case. Because the court clerk (not a State official) was not given standing, and the question of the (private) opponents’ standing is still at large, there is still the possibility that the case could be dismissed altogether and we would not face a US Supreme Court trial. In other words, if the Ninth Circuit rules on the merits, the case will most certainly go to the US Supreme Court. At this point in time, that could still be avoided. Second, the fact that the Ninth Circuit is addressing this question of standing does not necessarily mean that they are simply “punting” the issue or trying to avoid having to answer it altogether. Again, according to Shannon Minter, questions of standing are very important. If the (private) proponents of this initiative are allowed to supersede elected officials in Court, that is a precedent that will have lasting impact beyond this case. Not only would Prop. 8 be decided in the US Supreme Court (assuming they decided to hear it) but the question of standing would hold as a precedent before that Court. Also, future discriminatory initiatives would have an easier time in court challenges because they would not require State officials to defend them. That would be bad news all around for equality and justice.
In summary, it seems that while it is frustrating to now have to wait for the CA Supreme Court to decide if it will answer the question and/or rule, these are good developments for opponents of Proposition 8. Certainly, the fact that Imperial County was not given standing is reason to celebrate.
All of the various major organizations have put out press releases in regards to this development. I’ll link two*. The first is from EQCA who, along with their professed optimism in terms of the case, mention that their amicus brief submitted to the Ninth Circuit was the only brief forwarded to the CA Supreme Court by the Ninth Circuit. This is indeed the case and, as explained by Shannon Minter (see question 170), is because it was one of the few amicus briefs that addressed the issue of standing. The Ninth Circuit forwarded one such brief from each side for the CA Supreme Court’s consideration.
MEUSA also issued a press release continuing to affirm that “it is only a matter of time” before marriage is restored.
*As a side note, it is interesting (to me) that the Task Force has not even updated their website to mention the ruling.
I got some very helpful information from Ty Redhouse, the Military Liaison from MEUSA the other night on the state of DADT.
Yes, DADT was repealed on December 18, 2010. However, it still IS IN EFFECT. Right now there is a certification process in effect that has no timeline for completion. This process requires the review of the Report by the President, the Joint Chiefs of Staff and others. Once it is certified there is a 60 day implementation window. After that, then it will be an Executive Order ending DADT. But it could be quite awhile before this actually happens. And in the meantime, people are still being discharged.
In the meantime there are no fewer than 5 DADT cases in court. The Log Cabin Republicans V Dept. of Justice is one such case and the Plaintiffs are asking the Court to deny the Justice Dept. motion to suspend the case because of the legislative repeal. Again, people are still being discharged and the timeline for repeal is not set. Col. Victor Fehrenbach vs. the Air Force is still working its way through the courts, as is Witt vs. Dept. of Air Force,, a new case involving three veterans seeking reinstatement, and a class-action lawsuit brought by the ACLU over a veteran who’s pay was cut by 50% during discharge proceedings (!).
I get the sense that people need to keep our politico’s feet to the fire over DADT because right now we are ‘waiting to see’ how long this certification process will take. I’ll keep my eyes open for calls to action.
On Oct. 12, the Federal Appeals Court struck down the federal definition of marriage because it violated the equal protection clause and due process. It is now on appeal.
Other States and Marriage Equality
Rhode Island’s new (Republican) Governor has called for marriage equality in his inauguration speech.
New Mexico’s Attorney General says that the State can recognize out of state same-sex marriages.
The latest on EQCA’s change of leadership:
This LAWeekly article by Patrick Range MacDonald is causing a splash across blogger-land. In short, there is a lot of history about the “merger” of MECA and EQCA, the rise of EQCA, folks’ problems with Gay, Inc., how Geoff Kors is viewed in Sacramento and by fellow activists, etc. It’s a good read.
If there’s anything you think I should add, or something that should be in the next installment – I will try to do one of these weekly – then leave me the link in the comments. Yours in struggle, Socgradmama.