Prop. 8 Federal Appellate Oral Arguments On TV Dec. 6!

On Monday December 6th at 10am, A 3-judge panel of the 9th U.S. Circuit Court of Appeals will hear the case of Perry v. Schwarzenegger, also known as the federal Proposition 8 lawsuit. On August 4th, openly gay federal District Court judge Vaughn Walker ruled that Proposition 8 violated the United States Constitution.

These facts have been known for awhile. The new information is that apparently the oral arguments in the Perry appeal will now be televised by C-SPAN and local channel KGO. This is a big deal, because the lower court was intended to be broadcast as well but the heterosexual supremacists defending Proposition 8 objected and appealed all the way to the United States Supreme Court who overruled Judge Walker and banned the broadcasting of the oral arguments just days before the trial was scheduled to begin this past January.

Here are the details of the hearing on Monday, which will be in two 2-hour segments. The first session will be on whether the Proposition 8 propnents have "standing" to actually continue defending the statue, since the official parties to the lawsuit (the Governor and Attorney General) have refused to defend the voter-passed initiative in court. The second hour will be about the constitutionality of Proposition 8 itself.

Filed clerk order (Deputy Clerk:KKW): The Court orders that oral argument in these appeals be conducted in the following manner: The argument shall be divided into two hour-long sessions, with a brief recess in between. In the first hour, the parties shall address each appellant’s standing and any other procedural matters that may properly be raised. In the second hour, the parties shall address the constitutionality of Proposition 8.

During the first hour, the Hollingsworth defendants-intervenors-appellants (“Proponents”) shall first have 15 minutes, and the Imperial County movants-appellants shall next have 15 minutes in which to present their opening arguments regarding standing and other procedural issues. The Perry plaintiffs-appellees shall then have 30 minutes in which to respond. Any time reserved by either appellant may be used for rebuttal, but only one rebuttal argument may be made and that by either appellant.

During the second hour, the Proponents shall first have 30 minutes to present their opening argument on the merits of the constitutional question. The Perry plaintiffs-appellees shall then have 15 minutes, and the plaintiff-intervenor-appellee City and County of San Francisco shall have the next 15 minutes, in which to respond. Any time reserved by the Proponents may be used for rebuttal.

No later than November 24, 2010, the parties shall advise the Court of any objection they have to the allocation of time within each hour or of any reallocation of time within each hour that they wish to propose, by electronically filing letters with the Clerk of the Court. If any party wishes to give its full allotted time within either hour to an amicus curiae, it may request that the Court reallocate that time accordingly. Otherwise, no motions for leave to participate in oral argument by amici curiae will be entertained.. [7545517]

The names of the judges who will hear the appeal have not been released yet. Whoever loses at this level will appeal to the United States Supreme Court, who may or may not accept the case.

ACLU & GLAD File Lawsuits Against DOMA

Suzanne & Geraldine Ardis are married and
raising three boys in Clinton, CT.

Interesting news on the civil rights front. The American Civil Liberties Union (ACLU) and Gay and Lesbian Advocates and Defenders (GLAD) arefiling lawsuits today challenging the Defense of Marriage Act (DOMA) on behalf of same-sex married couples from New Hampshire, Vermont, Connecticut and New York.

The New York Times reports in ("Gay Couples To Sue U.S. Over Marriage Law"):

The two new lawsuits, which involve plaintiffs from New York, Connecticut, Vermont and New Hampshire, expand the attack geographically and also encompass more of the 1,138 federal laws and regulations that the Defense of Marriage Act potentially affects — including the insurance costs amounting to several hundred dollars a month in the case of Ms. Pedersen and Ms. Meitzen, and a $350,0000 estate tax payment in the A.C.L.U. case.

The civil liberties union filed suit on behalf of Edith S. Windsor, whose spouse, Thea C. Spyer, died last year of aortic stenosis. The two women, New Yorkers who had been together for 44 years, married in Toronto in 2007. New York officially recognizes same-sex marriages performed in other states. Had the two been man and wife, there would have been no federal estate tax to pay.

“It’s just so unfair,” said Ms. Windsor, who is 81.

Taken together, said Mary Bonauto, the director of the Civil Rights Project for the Gay and Lesbian Advocates and Defenders, the cases show same-sex couples “are falling through the safety net other people count on.”

Traditionally, Ms. Bonauto noted, the federal government has left the definition of marriage to the states. “The federal government has respected those determinations, except in the instance of gay and lesbian couples marrying,” she said. The result, she said, is a violation of constitutional guarantees of equal protection.

GLAD does not play around. Many people (including yours truly) expect them to win their other lawsuit challenging DOMA, Gill v. OPM,  which is currently before the 1st Circuit U.S. Court of Appeals with GLAD having already won at the district court level. That lawsuit was on behalf of same-sex couples who have been married in Massachusetts for at least 5 years.

Do you think DOMA will still be federal law five years from now? 

Race: The Power of an Illusion

We're going to watch a clip from the PBS documentary Race: the Power of an Illusion in Friday's class as we discuss how race is a social construction, especially in the legal sphere. You should read both articles by Law Professor Ian Haney López (White By Law, The Social Construction of Race). You might want to check out other clips from this excellent documentary on the web.

I'm looking forward to multiple comments from students on this topic!