This summer saw marriage equality happen in New York State, a subsequent pledge to work for marriage equality in Maryland in 2012 by it's governor, and a new drive to bring marriage equality to Maine via ballot initiative. But now it's back to the courts for more legal jujitsu. In the next two weeks three hearings related to LGBT rights will be held in California; one in Federal District Court, one in the Ninth Circuit Court of Appeals, and one in the California Supreme Court.
Villians, Vicissitude, and Video Tapes
On Monday, August 29th, at 9:00 AM in the Philip Burton Federal Building, 450 Golden Gate Avenue, Courtroom 15, 18th Floor, San Francisco, Judge Ware will hold a hearing on whether to release video tapes of the Perry v. Schwarzenegger trial (aka the Proposition 8 trial), in which Judge Vaughn Walker declared that Proposition 8 was an unconstitutional infringement on the fundamental right of two same-sex people to marry.
In a rather amusing twist, video tapes of Perry v. Schwarzenegger, along with reenactment videos, will be 'used and referred to' during the hearing by the plaintiffs.
The issues surrounding these tapes are almost as interesting as the case itself. But to be brief, when the US Supreme Court ruled that the trial could not be televised, Judge Walker ordered that it be videotaped so that he could use the recordings for review while writing his decision. The question is, now that the trial is over, are the tapes a matter of public record, or did the US Supreme Court ruling mean that no video could ever be made public?
The defendants (those supporting Proposition 8) are practically apoplectic at the thought of these tapes being released, as the consensus is that the defense presented a terrible case -- their own expert witnesses occassionally supporting the plaintiffs' contentions.
How the issue will resolved is totally up in the air, and may go on for years awaiting a final decision by, you guessed it, the US Supreme Court, by which time no one may care.
Guns, Government and Gays
On Thursday, September 1, at 9:00 AM at the Richard H. Chambers Courthouse, 125 South Grand Avenue, in Pasadena, CA a three judge panel of the Ninth Circuit Court of Appeals will hear the government's appeal in Log Cabin Republicans v. United States. About a year ago Judge Virginia Phillips ruled that Don't Ask, Don't Tell was unconstitutional and ordered the government to cease and desist. Justices Shroeder, Gould and Navarro will conduct the hearing.
"Whoa!" you might say. And "Isn't Don't Ask, Don't Tell all but repealed, so the case rendered moot?" you might ask.
Well you might. The answers are "Yes." and "Maybe." The Don't Ask, Don't Tell policy is scheduled, by law, to go away on September 20th. But Log Cabin Republicans (LCR) contends that because of constitutional issues surrounding DADT even after repeal goes into effect the case should not be mooted. The government, as one might expect, disagrees. Certainly the possibility for discrimination remains since neither new military regulations nor any legislation protect LGB military personnel from being discriminated against because of their sexual orientation (as constrasted with, say, race or gender). There are also issues of how past service members, deprived of their constitutional rights by a law since declared unconstitutional, should be treated with respect to re-enlistment and compensation for lost benefits.
Sex, Standing and San Francisco
On Tuesday, September 6th, at 10:00 AM in the Earl Warren Building, 350 McAllister Street, San Francisco, in a case related to Perry v. Schwarzenegger, the California Supreme Court will hear oral arguments on whether the defendant-intervenors in the case have standing to appeal in the eyes of the California Constitution. (No California official would defend the constitutionality of Proposition 8, so Judge Walker allowed the proponents of the initiative to argue the case, becoming the awkardly typed 'defendant-intervenors').
The ins and outs of this are beyond complicated. Basically the Ninth Circuit Court of Appeals, which held oral arguments back in December of 2010 on Perry v. Schwarzenegger, decided that they could not decide whether the defendant-intervenors had standing to appeal in Federal Court unless and until California decided whether they had standing with respect to California law. So they asked the California Supreme Court (CSC) to decide vis a vis California law. Once the CSC rules (and it must, within 90 days of the hearing), the case will go back to the Ninth Circuit.
The Ninth Circuit will then rule on whether the defendant-intervenors have standing with respect to Federal Court, presumably relying heavily on the CSC's opinion. If the Ninth Circuit rules that the defendant-intervenors have standing, they will also rule on the constitutionality of Proposition 8. However it goes, expect the Ninth's decisions to be appealed, and for a final resolution of the matter to take a long time.
Still, another milestone (or is that millstone?) will have been passed come September 6th in the long battle for marriage equality in California.