[Editor's Note: With the Prop 8 ruling today from the Ninth Circuit, there have been numerous media reports that are not entirely accurate.  My roommate, Richard Muniz, repeatedly pointed out some of the nuances of the ruling (and inaccurate reports).  I suggested he write a guest blog to clarify some of the matters.  And since he is far more savvy in understanding constitutional law issues, I defer to him.]

Today’s much celebrated decision in Perry v. Brown, affirming the unconstitutionality of Prop. 8, is laudable for many reasons. For one, it confirms that discrimination against LGBT folks solely because of their/our sexual orientation is not a legitimate governmental objective and hence unconstitutional. Second, and mostly ignored by today’s media coverage, the panel unanimously agreed that the sexual orientation of Chief Judge Walker was not a basis for recusal (and therefore denial of a motion to toss out his August 4, 2010, ruling was appropriate), a first for an appellate court. So, what else did today’s decision say and what did it omit?

What the decision says

The court, 2–1, concluded Prop. 8 violated the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution.

Why you may ask? Because Prop. 8 “takes away” rights previously granted to people for no other reason than animus.

This is important and the core of the Ninth Circuit’s decision. It is very narrow and unique to California. The idea here is that California constitutionally guaranteed same-sex couples the right to marry (See In re Marriage Cases, 183 P.3d 384 (2008)), and 143 days later, California voters amended their Constitution to “take away” the right to marry for only same-sex couples. And, once the government giveth, it can only taketh away for rational, legitimate reasons.

The reasons offered by the proponents of Prop. 8 (and their supporters)—furthering responsible procreation and childrearing, protecting religious freedom, taking it slow when making significant changes, and “preventing children from being taught about same-sex marriage in schools”—were all rejected by a majority of the panel. So, what remains is an inference of animus. Basically, if no rational reason remains to explain Prop. 8, then all that could remain is hate, which is the antithesis of reason/rationality. That notion follows earlier Supreme Court cases, including and most notably Romer v. Evans, 517 U.S. 620 (1996), which said that Colorado Amendment 2 was unconstitutional. (Amendment 2 was a voter-enacted measure that nullified existing and prevented future anti-discrimination laws enacted for the protection of LGBT individuals.)

Importantly, this argument is not present in the district court’s 2010 decision initially striking down Prop. 8. Indeed, Chief Judge Walker concluded that Prop. 8 violated the Due Process Clause of the Fourteenth Amendment because it denied lesbians and gays access to marriage, which is a fundamental right guaranteed by the Federal Constitution, and violated the Equal Protection Clause because it discriminated against them because of their sexes and sexual orientations. The Ninth Circuit today avoided both of those arguments, opting to chart a new course.

In other words, the 2010 lower court decision and today’s Ninth Circuit decision are similar only in that they both conclude Prop. 8 violated the equal protection rights of lesbian and gays. They are dissimilar on how they reached that conclusion.

What it doesn’t say?

First, as noted above, it is very narrow and unique to California. The decision does not affirm Chief Judge Walker’s conclusion that individuals have a federal constitutional right to marry another of the same sex. Today’s decision also does not quite say that Prop. 8 unconstitutionally discriminates against lesbians and gays because of their sexual orientations. (Indeed, there is nothing in the opinion about whether lesbians and gays get the same constitutional review as those given to race- or sex-based laws, i.e, whether sexual orientation is a suspect or quasi-suspect class.) Rather, it focuses in on another form of discrimination: the taking away of rights because of a majority’s disfavor of a minority group.

Also worth noting was the court’s willingness to ignore the majority of Chief Judge Walker’s findings. Judge Walker made over 80 findings of fact, including “46. Individuals do not generally choose their sexual orientation. No credible evidence supports a finding that an individual may, through conscious decision, therapeutic intervention or any other method, change his or her sexual orientation.” and “51. Marrying a person of the opposite sex is an unrealistic option for gay and lesbian individuals.”

Weaknesses

What are the ruling’s weaknesses? The first is the distinction between “taking away” rights already granted and not giving it in the first instance. The court, as I have said, relies on the “taking-away” argument by saying that taking away rights is somehow different than not giving the right in the first place. But, is that really true? Consider: you were given the right to marry, but before you could take advantage of it, the right was revoked. Now consider this: you were never given the right to marry. Is there really a difference? In both cases, you cannot get married. Although, I admit the first example seems more pernicious than the second, but the question really is whether that distinction has constitutional significance.

The second weakness is the court’s rejection of tradition as a legitimate objective for lawmaking. Meaning, the purpose underlying a law cannot be “that’s how we have always done things and so that’s how we should continue to do things.” But, of course, if we have done things for a really long time, then maybe we have been doing it right for all that time, so why should we change our practice? I hate to do this, but an example is a law against polygamy. Why do we outlaw polygamy? Because we think it is wrong? Well, that is not a constitutionally acceptable reason for the same reason as a law targeting lesbians and gays for unequal treatment because of a disapproval of their/our relationships is unconstitutional. Is it because we have always outlawed the practice? Sure, but the court today said that is not enough either.

The third weakness is the court’s (over)reliance on Romer v. Evans. Prop. 8 deprives same-sex couples of the designation of “marriage,” nothing more. Colorado Amendment 2, on the other hand, was “far reaching” in that it singled out lesbians and gays and placed on them/us a unique disability experienced by no other group (e.g., only lesbians and gays could not receive the protections of anti-discrimination laws, but racial minorities and women could still obtain those protections). Judge Smith noted this difference between Prop. 8 and Amendment 2 and others in his concurring and dissenting opinion. He also discussed the first weakness above in his opinion.

Judge Walker, Perry v. Brown, Prop 8, Proposition 8, Richard Muniz Hide

On March 12, the NFL announced the addition of two powerhouse attorneys, David Boies and Paul Clement, joining the legal team representing the league in the current dispute with the Player’s Association.

On March 14, I wrote about how the involvement of Boies was an interesting development, at least from the intersection of gay rights and the sports industry, because of Boies’ involvement with the Prop 8 case. I was especially intrigued by Boies essentially “flipping sides” from a political viewpoint and how the press often failed to mention his involvement in the Prop 8 when listing his credentials.

At that time, the involvement of Clements was non-newsworthy (from the perspective of gay rights and sports, at least).  That has changed dramatically in the last week, especially with the big news today.  I’ll explain.

On February 23, the Department of Justice, in a letter to Speaker of the House, John Boehner, announced that it would no longer defend the Defense of Marriage Act (DOMA) in court.  Expectedly, this infuriated the republicans, and on March 9, the Bipartisan Legal Advisory Group (BLAG)—a House of Representatives committee of 3 republicans and 2 democrats—voted to have the House intervene to defend DOMA.

Then, and this is where the story starts to connect, on April 18, BLAG announced that Paul Clement of the firm King & Spaulding would serve as outside counsel for the House to defend DOMA.

Chris Geidner of Metro Weekly’s Poliglot wrote an excellent article documenting the reaction to this development.

Poliglot quoted a statement from Joe Solomonese of HRC: “The firm of King & Spalding has brought a shameful stain on its reputation in arguing for discrimination against loving, married couples. No amount of taxpayer money they rake in will mitigate this blemish on the King & Spalding name.”

King & Spalding came under fire for the decision—a decision viewed as hypocritical. King & Spalding was known as a firm that supported gay rights internally and externally. The firm had a 95 rating on the HRC index, was known to be supportive of openly gay attorneys, and regularly donated to gay organizations and events in Georgia.

King & Spalding decided to reverse course: they would not take the DOMA case.

Paul Clement, however, was in it for the long haul.

Today, Clement resigned from King & Spalding to join the firm Bancroft PLLC in intervening in the DOMA case.

In his letter of resignation, Clement cites to the ethical responsibilities of an attorney as the reason for the decision. And he insists the decision is not because of his views about DOMA.

He writes: “I resign out of the firmly-held belief that a representation should not be abandoned because the client’s legal position is extremely unpopular in certain quarter. Defending unpopular positions is what lawyers do.”

While that’s a fair and respectable position to take, of course, I do question whether that is the real reason. Clement was Solicitor General for 3 years under President Bush. He clerked for the ultra conservative U.S. Supreme Court Justice Scalia. He went to a firm which has numerous ties to conservative politicians, judges, and businesses.

I think it’s fair to assume that he, personally, wants DOMA to remain an effective law in the United States.

Further, I also think he could have stayed in line with his firm’s decision not to defend DOMA and nobody would have challenged his commitment and understanding of the profession.

I do not know if Clement’s role with the NFL will be affected by leaving King & Spalding. I assume that he will stay on the case. And if true, the NFL case will now have lead outside counsel, of Clement and Boies, both on opposite ends of the marriage equality spectrum, and both involved in pivotal litigation on the issue.

Bancroft, Chris Geidner, David Boies, Department of Justice, DOMA, HRC, Joe Solomonese, John Boehner, King & Spaulding, Metro Weekly, Paul Clement, Poligot, Prop 8 Hide

David Boies and Ted Olson have been the lead counsel and the face of the trial challenging the validity of Proposition 8 in California.  Due to their seemingly opposite political leanings, particularly highlighted by being direct opponents in Bush v. Gore in 2000, the pairing of the powerhouse attorneys has been a major headline of that case.

I’ve blogged several times about the Prop 8 case, especially during the initial trial stage while all the juicy facts were coming out.  Currently, the case is on appeal focusing on a procedural issue of standing.  Once that issue is resolved, the court(s) will move on to the substantive issues: whether Prop 8 was unlawfully discriminatory.

The interesting story this week, at least for the scope of this blog, is that Boies was hired to join the team of counsel representing the NFL in the antitrust litigation with the NFL Players Association, Brady vs. National Football League.

Without getting into all the merits and substance of the lockout and antitrust lawsuit, there are two sub-stories that I wanted to address (that will probably go unnoticed by the general media).

(1) Almost every news outlet excluded Boies’ current high-profile battle in the Prop 8 case when listing his credentials.

In the NFL’s press statement announcing the hiring of Boies they listed off some of his main credentials (I’ll add in (1), (2), and (3) so you can read it more easily):

(1) Last November, Boies won a $1.3 billion copyright infringement verdict for Oracle — the largest verdict of its kind in history.

(2) Boies is currently co-leading a landmark civil rights case involving the Constitutional protection of same-sex marriage.

(3) He is the recipient of numerous awards and accolades including Time magazine’s “100 Most Influential People in the World” in 2010 and runner-up for Time‘s “Person of the Year” in 2000 for his work in Bush v. Gore — the year Boies was also named “Lawyer of the Year” by the National Law Journal.

I commend the NFL for listing his current, prolific legal credential working on the Prop 8 case in this announcement.

In contrast, I’m a little peeved that so many news outlets cut it out!  And those that included it did a simple cut-and-paste job with the paragraph from the NFL’s statement.  Admittedly, some of the news outlets had such short blurbs that you’d expect something to get cut, and further, that he is most well-known for the Bush v. Gore case and the context of the Oracle ruling may be more pertinent for interested readers.  But still, sometimes it is these little forms of censoring that annoy me (and are detrimental to progress for the gay community).

A sample of what I’m talking about:

Associated Press (picked up directly by ESPN): They had a very short blurb, only including Bush v. Gore.

New York Times: Their piece was a bit longer – long enough to include both Bush v. Gore and the Oracle victory, but apparently the same-sex marriage credential wasn’t good enough.

Pro Football Weekly: They didn’t mention any of the 3 credentials, so I’ll give them a pass.

National Football Post: They copied the first two credentials verbatim from the NFL release, including the same-sex marriage bit.  But then, in trying to cut down the qualifiers for the 3rd credential, they actually misapplied his “Lawyer of the Year” distinction as something that came from Time Magazine.

Pro Football Talk: We have a winner!  PFT listed all 3 credentials, but did so in their own words.  So, when they had an opportunity to cut out the same-sex marriage credential (and based on how they wrote, they really could have without interrupting the flow of the article), they left it in!

(2) In a way, Boies has “switched sides” in the way Olson is doing for the Prop 8 case.

I want to be careful here, because I, personally, do not agree that Olson “switched sides” by representing the gay plaintiffs in the Prop 8 case.  As he so eloquently wrote in an article titled, “The Conservative Case for Gay Marriage,” for Newsweek, “same-sex unions promote the values conservatives prize.”

However, Olson also recognized that “fellow conservatives have an almost knee-jerk hostility toward gay marriage,” and in that respect, I’m sure many conservatives think he has “switched sides.”

Similarly, one could argue that Boies has done the same.  Traditionally, for labor disputes, the conservatives/republicans side with the employer or management and liberals/democrats side with employees.  (If you need more evidence of this, just look to the current state of labor disputes ushered in by the republican governors in Wisconsin and Ohio.)

I am not sure if Boies will catch any flack for this from the liberal base, but I wanted to at least share the observation.

[EDIT:] I just read Peter King’s Monday Morning Quarterback for this week and he agrees with the “switching sides” analysis:

The plain-spoken and deep-thinking Boies is, in the words of one veteran sports executive, “about as liberal as George McGovern, and who’d have ever thought the NFL would hire someone like that?”

Boies worked for Al Gore in trying to get his close loss to George Bush in the 2000 election overturned. He won a case in California seeking to overturns the state’s ban on gay marriage. He’s a big supporter of Teach for America, which urges some of the smartest college graduates in the country to give their first two post-grad years to teaching in underprivileged school districts. He represented far, far left-wing filmmaker Michael Moore in a Treasury Department investigation into Moore’s travel to Cuba in the health-care-industry-ravaging movie Sicko.’ And he was of a team of lawyers representing Jamie McCourt in her high-profile divorce from Frank McCourt.

David Boies, NFL, NFLPA, Peter King, Prop 8 Hide

This past weekend, the Mormon church held its 180th Semiannual General Conference – a conference that is broadcast to all its members across the globe.  The leaders of the church reiterated the churches stance that allowing gay marriage would be “legalizing immorality” and that same-sex attractions are choices that can be changed.

Boyd K. Packer, president of the church’s Quorum of the Twelve Apostles, added that the church would continue to oppose marriage equality: “Regardless of the opposition, we are determined to stay on course.”

Some of my thoughts are easy to transcribe on this blog; this is not one of those cases.

I am the “black sheep” of my family.  Every single person in my family went to BYU – both parents and all 7 siblings.  My four brothers served two-year missions for the church, as required.  One of my three sisters did as well.  I did not.  My path has been different, obviously.  When I was 18, my mother gave me the ultimatum: start going back to church or move out.  My response: okay, bye.

Yet even as I have become more confident and assertive, I have not pressed the issues with my family.  I have never challenged them.  I’ve consider it a futile exercise where nobody wins.  In a brief conversation about Prop 8 with my most open-minded sister, she told me that she would have voted for it.  I was crushed by her words.

I can’t let it slide any longer.  I cannot ignore the damage these messages cause.

When I hear that message of hate, bigotry, and intolerance proliferating to the entire church, I can only think of two things:

(1) How does my family receive those messages?

I am sure that my entire family heard it.  When they do, how do they take it?  Has my coming out changed their perceptions?  Do they doubt the messages at all?  When Boyd K. Packer, speaking on gay marriage, asks, “A law against nature would be impossible to enforce. Do you think a vote to repeal the law of gravity would do any good?” does my family realize how stupid that analogy sounds?  Seriously, it doesn’t make any sense.

And how do they think of me now?  The foundation of the Mormon faith is the idea of an eternal family.  Do they consider me the one that screwed it up for everyone?  I wonder how much they still pray for me.  I can just hear it now, casually tossed into a pre-dinner prayer, “And bless Pete to open his heart to the Savior so he can change his ways. Amen.”

Honestly, I can deal with all of that on a personal level.  Those are little issues.  But, more importantly, when I hear about the message to the entire church, I can only think of:

(2) All the GLBT youth in the church.

It’s tough thinking back to those days sitting in church, hearing the anti-gay rhetoric.  I remember being a young teenager, probably 14, and going to one of these conferences and hearing these same messages.  They said I was confused.  I needed help.  I was a sinner.  My thoughts were not natural.  I was betraying God’s plan.  They said I could change.  I remember going home and spending weeks, months, and years trying to pray to be fixed.  At 17, I remember thinking I had an epiphany when I considered homosexuality my one big temptation that if only I could overcome it, I’d be rewarded by God.

I am saddened thinking about the hundreds and hundreds of youth in the church who are having those same feelings after attending General Conference sessions this past weekend.  They feel less-than, they feel ashamed, they feel despair.  They want to change, they try to change, but they cannot change.  Because it cannot be changed.

Undoubtedly, there are youth who heard that message who will commit suicide.  The church knows that.  How could it not?  There have been plenty of documented suicides by Mormon youth.  Think about that.  The church leaders deliver a message that they know will lead to the death of a segment of its membership, and they deliver that message anyway.  That absolutely disgusts me.

In a recent interview with CNN, Dan Savage, who is leading the “It Gets Better” YouTube campaign to help struggling GLBT youth, says the religious right needs to be held accountable for these suicides.  I agree.

BYU student Cary Crall submitted a letter to the editor of the school’s student paper “The Daily Universe” challenging the churches support of Prop 8.  While the letter was published and then pulled, it is available in its entirety here.  Crall writes:

“It is time for LDS supporters of Prop 8 to be honest about their reasons for supporting the amendment. …  We must be honest about our motivation, and consider what it means to the delicate balance between our relationship with God and with His children here on earth. Maybe then we will stop thoughtlessly spouting arguments that are offensive to gays and lesbians and indefensible to those not of our faith.”

I wonder if the church will ever change.  They “believe in being subject to kings, presidents, rulers, and magistrates, in obeying, honoring, and sustaining the law.”  (It’s their 12th of 13 Articles of Faith.)  So if gay marriage becomes the law of the land, will it be okay?  Sadly, no, not to them.  That law will be a mistake of man going against the natural law of God.  Sadly, I imagine that the church will remain our strongest opposition until we get equal rights (and after).

Dan Savage, LDS, Mormons, Prop 8 Hide

Much has been said during this trial about how it an equal rights issue, and not one that should be divided by the standard bi-partisan republican/democrat lines.  The news of Ted Olson, a renowned conservative attorney, joining the case for marriage equality has been well-documented.  Even still, it would be unrealistic to expect people, the general public, to so freely abandon their party lines: there is comfort and ease in being about to spout off the rhetoric without having to deeply analyze each issue individually.  And that’s not a jab at just one side; we all do it.

Yet this case, and the issue in general, has led Olson, and others, to vocalize their support of marriage equality, despite their generally conservative-leaning politics.  One example is Margaret Hoover, a regular contributor to Fox News, who wrote an excellent article on her “conversion.”  She writes: “Gays and lesbians are our friends, neighbors, doctors, colleagues, sisters and brothers.  Does it sit well with you that because of their sexual orientation, a factor outside one’s control, that they should have less rights and protections in the eyes of the law?”

They even have a Facebook page: Republicans for Marriage Equality.

Today, the court heard the testimony from another “converted,” San Diego Mayor Jerry Sanders.  There is no better way to translate his “conversion” than to show his own heart-felt, tear-filled speech:

The adjective used in the title to describe that man is perfect: courage.  The courage it takes to put aside pride, political motives, and to stand up for a group of people you do not belong is remarkable.  I cannot thank him enough, and I am so glad that his role in this case led to sharing of the video.

The Twitter blips from the case while Sanders was on the stand mirrored that same emotion and conviction as the video above.  Here were my favorites from the day:

• @AmerEqualRights Mayor Sanders is a Republican and former police chief of relatively conservative San Diego #Prop8
• @TheAdvocateMag #prop8 sanders once thought civil unions a fair alternative. Changed position very publicly in 07
• @AmerEqualRights Sanders in video: He said it was wrong to tell people they were “less worthy” and “less deserving” of marriage #Prop8
• @AmerEqualRights Sanders in video: “The concept of a separate but equal instititution is not something I can support” #Prop8
• @TheAdvocateMag #prop8 sanders: if govt tolerates discrim against anyone, it becomes excuse for public to do the exact same thing.
• @AmerEqualRights Mayor Sanders on Prop. 8 campaign: “I couldn’t imagine why anyone would think that children would be harmed by marriage”

Facebook, Fox News, Margaret Hoover, Perry v. Schwarzenegger, Prop 8, San Diego Mayor Jerry Sanders, Ted Olson, twitter Hide