Legal Pad

Full Text of Landmark DOMA Ruling Cites Tenth Amendment Violation

[Cynthia Foster]

Federal Judge Joseph Tauro, out of Boston, ruled today, in two separate cases, that some key parts of the Defense of Marriage Act are unconstitutional.

In particular, Tauro ruled that Congress violated the Tenth Amendment when it passed DOMA.

For the full text of the ruling, which I haven't been able to find elsewhere on the Internet, click here.

Walker's Got Little Patience

[Dan Levine]

Never a good sign when a judge walks off the bench while a lawyer is in mid-sentence.

Yet, Orrick Herrington & Sutcliffe partner Stephen Bomse should have been too surprised by Chief Judge Vaughn Walker’s exit Tuesday: Walker had been hammering Bomse throughout a hearing on whether groups like the ACLU would have to turn over documents to the proponents of Prop 8.

This discovery mess – which threatens to delay a final Walker ruling on the constitutionality of Prop 8 – commenced in January, when the Ninth Circuit forced Yes on 8 to turn over some of its campaign materials.

IP Twist in the Prop 8 Kerfuffle

OK, a trial that's either about the 1) historic imperative to extend a basic civil right to a routinely persecuted minority, or b) a crisis that threatens our children, religious expression and the sanctity of heterosexual marriage, depending on how you vote, is more than a "kerfuffle."  But this next thing here, this is definitely no "brouhaha." It's barely a "flap."

The SF Gate's Scavenger blog reports that the righteous forces of Yes on 8 are not amused that their stick-figure logo for straight families united against unstraight families has been parodied (or, hey, infringed) by the folks from across the aisle (political aisle, not the one a wedding party walks).

A pro-marriage-equality group parodied the ProtectMarriage.com logo for its Prop 8 Trial Tracker site (hope they're following Dan Levine's daily stream of insightful courtroom tweets).  And, shockingly, the ProtectMarriage people turn out to be kinda upset about it. I know, who saw that coming?  So we have a suit for infringement, blah blah.  We present the logos of both sides for your consideration.

And we offer this thought: the Trial Tracker folks' parody consists of making the figure wearing pants wear a dress, suggesting that the little blue children Have Two Mommies, as they say. Oh, and like a cadre of Cosmo photo editors, they shave a little weight off the figure's waist.  It's funny, and stick-figure iconography has to be simple and clear, but it's still kind of ironic that a group opposing small-minded limitations in gender roles resorts to "(skinny) girls wear (short) skirts" to make their point*.  

— Brian McDonough

*And before you hit me with the obvious, I quote from the Tracker website: "Just so we are clear on intent. We asked our graphic designer for a lesbian couple, not two men in drag."

Prop 8 Day 4: Morning Fascinates, Afternoon Cures Insomnia

Day four of the Prop 8 trial before Northern District Chief Judge Vaughn Walker started off pretty interesting. There was Walker cutting his losses on broadcasting the trial, informing the parties that he and Ninth Circuit Chief Judge Alex Kozinski agreed to withdraw the case from the circuit’s new pilot TV program. But, Walker is going to keep a video recording for himself, thanks very much.

Cooper tried to get the cameras stopped (they're rolling, broadcast or no) and the past days' recordings erased. Walker refused: “Recording would be quite helpful to me in preparing findings of fact. It's not going to be for public broadcasting.”

“Very well,” Cooper shrugged.

Following the money, until the fun runs out, after the jump.

While We Tweeted Prop 8, Kozinski Argued for Courtroom Cameras

Busy, busy day at the Prop 8 trial today in San Francisco. We tweeted the entire proceeding in real time and got an overwhelming response; check out fedcourtjunkie tomorrow for more from inside the courtroom.(And see the wrapup on Monday's hearing at CalLaw).

When we got back to our desk, we picked up a little letter war between Ninth Circuit Chief Judge Alex Kozinski and the U.S. Judicial Conference in Washington, D.C. The folks back East asked Kozinski to “consider” conference policy against cameras in the court. Kozinski, who has a turbulent history with Conference oversight (Internet firewalls, anyone?), fired back a missive defending the Ninth Circuit’s power to broadcast. Kozinski also said the circuit has been moving cautiously.

“Like it or not, we are now well into the Twenty-First Century,” Kozinski wrote, “and it is up to those of us who lead the federal judiciary to adopt policies that are consistent with the spirit of the times and the advantages afforded us by new technology. If we do not, Congress will do it for us.”

— Dan Levine
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We're in the Prop 8 Courtroom, and We Got the Twitter

The federal challenge to Prop 8 goes to trial on Monday, and Legal Pad will be there, Twitter feed in hand. In the absence of a live television broadcast, this is going to be as up-to-the-minute as it gets. In the meantime, check out our curtain raiser about the trial, focusing on how Chief Judge Vaughn Walker is creating a trial record that reaches out and touches Supreme Court Justice Anthony Kennedy.

As with any case that approaches opening statements, the filings came fast and furious on Friday. The Yes on 8 campaign asked the Ninth Circuit U.S. Court of Appeals to stay Walker’s order allowing a YouTube video upload, and a media coalition opposed that (Friday Update: The Circuit denied the appeal late Friday; Monday: SCOTUS pulls that plug). One of the official Yes on 8 proponents, Dr. Ha-Shing William Tam, filed papers seeking to withdraw from the case, saying his safety has been threatened and, boy, this trial thing turned out to be an awful lot of work. Legal Pad guesses the litigation strategy actually involves some damaging anti-marriage materials Tam wrote during the campaign which invoked the likes of Satan. If Tam is no longer a party, it may make it a little trickier to get those documents into evidence.

No more Satan, alas, but an outraged judge — after the jump.

Jerry Brown Protects Gay Veterans' Benefits

Look for rainbow flags to start flying at state-run veterans homes.

On New Year’s Eve, Attorney General Jerry Brown’s office issued an opinion stating that gay, lesbian and transgender military vets living in California are entitled to all state-funded veteran benefits, including veterans’ housing. And, yep, their same-sex domestic partners are covered too.

“We take this opportunity,” Los Angeles-based Deputy AG Marc Nolan wrote, “to make clear that, under the laws of California, neither military veterans nor their registered domestic partners may be discriminated against in the provision of state-funded veterans’ benefits on the basis of their gender or sexual orientation, the federal Don’t Ask Don’t Tell policy notwithstanding.”

The opinion had been sought by the California Commission on the Status of Women, which noted that the federal policy has contributed to “a widespread belief among military veterans that discrimination against LGBT veterans is acceptable in any military setting.”

The opinion notes that state anti-discrimination laws prevent the denial of state-funded benefits, including preferences in civil service exams, college tuition waivers and property tax exemptions.

Even gays and lesbians discharged from the military because of their sexual orientation get the benefits.

“It does not appear that a service member’s sexual orientation, in and of itself,” Nolan wrote, “will cause him or her to receive an ‘other than honorable conditions’ discharge, and this will be true even if the member’s sexual orientation formed the basis of a ‘homosexual conduct’ separation from service under Don’t Ask Don’t Tell.”

Look for disco nights at the veterans homes. The Village People’s “In the Navy” will likely be a popular request.

— Mike McKee

No Cameras Allowed in Prop 8 Trial. Unless They Are.

Update:  The Ninth Circuit on Thursday issued a press release saying cameras would be allowed in courts under its jurisdiction on an experimental basis.  Does this mean cameras for the Prop 8 case?  Well, here's the most interesting sentence in the release:

Cases to be considered for the pilot program will be selected by the chief judge of the district court in consultation with the chief circuit judge.

Walker: Camera-shy, yet so photogenic …

Chief judge for the Northern District? That guy over there on the right.  We'll have more on CalLaw tonight, and our original post is below.

As of today, cameras will not be permitted to televise the federal challenge to Prop 8. But that may change by the time trial starts next month.

Under local and circuit rules, television cameras aren’t allowed into court, said Northern District Chief Judge Vaughn Walker during a final pretrial conference Wednesday. However, the Ninth Circuit conference passed a toothless resolution a couple years ago supporting the concept in civil bench trials, just like the Prop 8 case. Now, the circuit’s governing council is mulling a pilot program to allow it, which “may be considered in the near future,” Walker said.

Later in the day, Legal Pad just happened to be at Seventh and Mission, chatting with Ninth Circuit Chief Judge Alex Kozinski. So we asked whether the circuit might pass the pilot program in time for the Jan. 11 Prop 8 trial. The normally loquacious Kozinski turned a touch furtive. “I really don’t want to comment,” he said.

En banc review of the recent Ninth decision on the case? Follow the jump.

Prop 8 Foes Attack Expertise of 'Expert' Witnesses

From McGill’s site: Official mascot Marty the Martlet (also not qualified to testify about sociological ramifications of gay marriage).

A truckload (.pdf) of filings (.pdf) went online in the federal challenge to Proposition 8 over the last two days, and some begin to sketch out the evidence which will be in play at the January trial. Our favorite tidbit so far: Prop 8 opponents calling one of the other side’s experts a crackpot (.pdf).

The person in play is Dr. Katherine Young, a professor who agitates against gay marriage from a perch at McGill University in Montreal — an esteemed institution which, in addition to Young, has produced such benefits to society as organized hockey, CIA-financed mind control, and your faithful Legal Pad correspondent (Class of 1997). According to the same-sex marriage side, Prop 8 supporters want to call Young as an expert on what universally constitutes marriage and why.

But, anti-Prop 8 folks note, Young is an expert in … Hinduism.

Ted Olson lists the many, many things she's not an expert in, after the jump.

Reinhardt Rules With Eye on the Prop 8 Federal Case?

Here’s another adventure, courtesy of Ninth Circuit Judge Stephen Reinhardt.

Awhile back, in an administrative order, Reinhardt found that a federal public defender was unconstitutionally denied health insurance benefits for his same-sex spouse. Today, the judge decreed that the FPD, Brad Levenson, receive back pay. But in an interesting little wrinkle, this latest missive (.pdf), was issued “for publication.”

According to Ninth Circuit rule 36-5: “An order may be specially designated for publication… and when so published may be used for any purpose for which an opinion may be used.” Clearly, Reinhardt is trying to lay some friendly precedential groundwork for the federal challenge to Prop 8, which is currently before Northern District Chief Judge Vaughn Walker. In his ruling, Reinhardt calls the federal Defense Of Marriage Act — which court administrators had cited to deny Levenson benefits — a violation of due process. Same-sex individuals deserve some form of heightened scrutiny, Reinhardt wrote.

Early X-Mas gift for the gay-marryin' types, after the jump ...