Proposition 8

Lasting Effects of the Supreme Court’s Prop 8 Decision

Stephanie Rugolo is the editor of The Rugolo Report and holds an M.A. from the Maxwell School of Syracuse University.

A strange thing happened in the Supreme Court’s recentHollingsworth v. Perry decision. Even though this case focused on California’s Proposition 8 that banned gay marriage, the court was split, with both liberals and conservatives comprising the majority and dissenting parties. It turns out that the rationale by which the Court’s majority decided the Hollingsworth case led to the justices’ scrambled ideological divisions. The Court’s reason for striking down Prop 8 limits civilians’ ability to legally defend initiatives, a disturbing limit to democratic liberties.

Proposition 8 was a citizens’ initiative passed in 2008 elections. A citizens’ initiative is unlike most laws passed by elected legislatures. Instead, these laws are initiatives of the citizens—that is, they are the result of independent citizens gaining enough signatures to get a proposed law on the ballot.

When gay couples brought a suit against Prop 8 that found the law unconstitutional, the State of California had no intention of appealing the decision. After all, neither the former nor current Californian administrations passed it in the first place, as it was a citizens’ initiative. Consequently, individual proponents of Prop 8 volunteered to appeal the decision in court. That raised questions of standing—whether Prop 8 supporters had a tangible stake in the case and thus a right to appeal. The Ninth Court found they did have standing before finding Prop 8 unconstitutional.

The Constitutional Case for Same-Sex Marriage

As the Supreme Court will hear oral arguments this week on both Hollingsworth v. Perry - the challenge to California’s Proposition 8, which banned gay marriage in the state - and U.S. v. Windsor - the challenge to the 1996 Defense of Marriage Act (DOMA), which recognized marriage at the federal level as between a man and a woman – state and federal laws effecting marriage equality face their first legal confrontation with the Judicial Branch. Herein I make the constitutional case for marriage equality that respects both individual and religious liberties.

Last week, Senator Rand Paul proposed removing federal recognition of marriage - for everyone – telling Bob Costa at the National Review:

Stay lifted in Prop. 8 decision

Yesterday, Judge Vaughn Walker, who issued the opinion finding California’s Proposition 8 to be unconstitutional, lifted a stay on his decision allowing same-sex marriages to begin in the state on August 18th:

U.S. District Court Judge Vaughn R. Walker, who overturned the measure on Aug. 4, agreed to give its sponsors until Aug. 18 to appeal his ruling to the U.S. 9th Circuit Court of Appeals. Walker said that same-sex marriages may resume at that time unless a higher court blocks them.

Walker said the sponsors of Proposition 8 do not have legal standing to appeal his order because they were not directly affected by it.

In addition, Gov. Arnold Schwarzenegger’s  and Atty. Gen. Jerry Brown, the state’s highest officials and named defendants in the case, have told Walker that his ruling declaring the measure unconstitutional should be enforced immediately.

So, even though the stay was lifted, the proponents of Proposition 8 still have time to argue for a stay to be reinstated, which the Ninth Circuit court may decide to do until they’ve heard the case on appeal.

The Assualt On Tolerance By The Tolerant

Brendan Eich

I strongly believe in a diverse, tolerant, and liberal society. I believe in not just tolerance when it comes to different races, religions, genders, and sexual orientations; I believe more strongly in the tolerance of ideas, especially those I strongly disagree with.

Unfortunately, the tolerant, liberal society I love and value so much is under attack, often by many of the same people who view themselves as “tolerant.” The latest case in point is the firing of Brendan Eich, the CEO of Mozilla.

Eich’s crime in the eyes of the tolerance police is the fact that he made a $1,000 contribution in support of California’s Proposition 8 in 2008. Proposition 8 sought to deny state recognition of same-sex marriage in the State of California. It passed, but was overturned by the US Supreme Court in 2013.

Now I disagree with Eich on Proposition 8 and I agree with the Supreme Court’s decision to overturn it. I support same-sex marriage, however, I have nothing but contempt for those who went after Eich’s job.

One of the most important things about a liberal, diverse, and tolerant society is the fact that people who have differing ideas, even those ideas that a majority of us would disagree with, could work and live together in peace. Such a diverse society and tolerant values allow us to be able engage in civil political discussions about anything without the threat to someone’s livelihood or the threat of a boycott designed to put a company out of business.

Obama has gotten one individual liberty issue right


Call it a case of the proverbial broken clock being right twice a day. President Obama has been terrible on most liberty issues, of course. He came into office promising a hands-off approach to medical marijuana states, but his DEA and FBI have kept the pace of the Bush administration on clinic raids. He has proposed and supported restrictive gun regulations, though his infamous “executive actions” didn’t end up amounting to all that much.

The myriad Obamacare mandates are egregious violations of individual and organizational liberty. But there’s one area where Obama has gotten it exactly right, or at least as well as can be expected from a modern President: individual rights for gay Americans.

Supreme Court avoids Proposition 8 ruling

In a ruling issued this morning, the Supreme Court essentially decided to punt on Proposition 8, finding that supporters who had defended the measure had no standing to legal challenge to lower court rulings.

The decision in Hollingsworth v. Perry came with an unususal paring of conservative and liberal members, with Chief Justice John Roberts writing for a majority that included Justices Antonin Scalia, Ruth Bader Ginsburg, Stephen Breyer, and Elena Kagan.

In 2008, voters in California passed a constitutional amendment, known as Proposition 8,that defined marriage as one man and one woman. The measure was in response to a state Supreme Court ruling earlier that year that legalized same-sex marriage. In January 2010, a challenge to the constitutionality of Proposition 8 went to trial in federal court. In August 2010, Judge Vaughn Walker struck down the measure, which legalized same-sex marriage in California. The State of California did not defend the Proposition 8 in any of the challenges.

In today’s decision, the Supreme Court did not weigh the merits of same-sex marriage. They did determine, however, those who brought the case forward had no legal standing to do so.

California’s Proposition 8 struck down

Back in August 2010, Judge Vaughn Walker, a Republican appointee, struck down Proposition 8, the amendment to California’s Constitution banning gay marriage. In his well written opinion, Judge Walker explained that the amendment violated the Due Process Clause of the United States Constitution and treated gays and lesbians like second-class citizens by denying them a basic individual right.

The ruling set in motion a case that many judicial observers felt would be decided by the Supreme Court, a point further driven home by yesterday’s ruling by panel of judges from the Ninth District Court of Appeals that California’s gay marriage ban is indeed unconstitutional:

A federal appeals court on Tuesday ruled that California’s ban on gay marriage was unconstitutional, injecting the issue into election-year politics.

In a 2-1 decision, the appeals court upheld a lower court ruling that declared a proposition approved by California voters in November 2008 unconstitutional.
In his 39-page majority opinion, Judge Stephen Reinhardt, an appointee of President Carter, said that supporters of the proposition did not have “legitimate reason for passage of a law that treats different classes of people differently.”

“All parties agree that Proposition 8 had one effect only,” he wrote. “It stripped same-sex couples of the ability they previously had possessed to obtain from the state, or any other authorized party, an important right — the right to obtain and use the designation of ‘marriage’ to describe their relationships. Nothing more, nothing less.”

The Constitutional Case for Marriage Equality

See Video

Former RNC Chair: “I’m Gay”

Ken Mehlman, a former chairman of the RNC and George W. Bush’s campaign manager, has confirmed in an interview with Marc Ambinder of The Atlantic that he is gay:

Mehlman arrived at this conclusion about his identity fairly recently, he said in an interview. He agreed to answer a reporter’s questions, he said, because, now in private life, he wants to become an advocate for gay marriage and anticipated that questions would arise about his participation in a late-September fundraiser for the American Foundation for Equal Rights (AFER), the group that supported the legal challenge to California’s ballot initiative against gay marriage, Proposition 8.

“It’s taken me 43 years to get comfortable with this part of my life,” said Mehlman, now an executive vice-president with the New York City-based private equity firm, KKR. “Everybody has their own path to travel, their own journey, and for me, over the past few months, I’ve told my family, friends, former colleagues, and current colleagues, and they’ve been wonderful and supportive. The process has been something that’s made me a happier and better person. It’s something I wish I had done years ago.”
Mehlman acknowledges that if he had publicly declared his sexuality sooner, he might have played a role in keeping the party from pushing an anti-gay agenda.

“It’s a legitimate question and one I understand,” Mehlman said. “I can’t change the fact that I wasn’t in this place personally when I was in politics, and I genuinely regret that. It was very hard, personally.” He asks of those who doubt his sincerity: “If they can’t offer support, at least offer understanding.”

Ninth Circuit stays same-sex marriage in California

Yesterday, the Ninth Circuit Court of Appeals reversed Judge Vaughn Walker’s decision to allow same-sex marriages to resume in California:

The decision, issued by a three-judge panel of the 9th U.S. Circuit Court of Appeals, trumps a lower court judge’s order that would have allowed county clerks to begin issuing marriage licenses to same-sex couples on Wednesday.

Lawyers for the two gay couples that challenged the ban said Monday they would not appeal the panel’s decision on the stay to the Supreme Court.

In its two-page order granting the stay, the 9th Circuit agreed to expedite its consideration of the Proposition 8 case. The court plans to hear the case during the week of Dec. 6 after moving up deadlines for both sides to file their written arguments by Nov. 1.

“We are very gratified that the 9th Circuit has recognized the importance and the pressing nature of this case by issuing this extremely expedited briefing schedule,” said Ted Boutrous, a member of the plaintiffs’ legal team.

Though a stay was issued by the appellate court, this isn’t all good news for supporters of Proposition 8 as the order reads:

In addition to any issues appellants wish to raise on appeal, appellants are directed to include in their opening brief a discussion of why this appeal should not be dismissed for lack of Article III standing.

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