Posts Tagged ‘ opinion ’

Yet Another Day In Court For Prop 8

February 12, 2012

SAN FRANCISCO — The sponsors of California’s gay marriage ban renewed their effort Thursday to disqualify a federal judge because of his same-sex relationship, but they met a skeptical audience in an appeals court panel. It’s the first time an American jurist’s sexual orientation has been cited as grounds for overturning a court decision. Lawyers for a coalition of religious conservative groups told a three-judge panel of the 9th U.S. Circuit Court of Appeals that Chief U.S. District Judge Vaughn Walker should have revealed he had a long-term male partner before he presided over a trial on the measure’s constitutionality. He also should have stated whether he had any interest in getting married, the lawyers said. Because he did not, Walker’s impartiality stands in doubt and the decision he ultimately made to strike down Proposition 8 as a violation of Californians’ civil rights must be reversed, said Charles Cooper, an attorney for the ban’s backers. “In May 2009, when Judge Walker read the allegations of the complaint, he knew something the litigants and the public did not know: He knew that he, too, like the plaintiffs, was a gay resident of California who was involved in a long-term, serious relationship with an individual of the same sex,” Cooper said. “The litigants did not have any knowledge of these facts, and it appears that Judge Walker made the deliberate decision not to disclose these facts.” Judge R. Randy Smith, who represents Idaho on the 9th Circuit, interrupted to forcefully ask why a gay judge would be any more obligated to divulge his relationship status and views on matrimony than would a married straight judge who opposes same-sex marriage. “So a married judge could never hear a divorce?” Smith asked. “Your honor, I don’t see the difficulty with a married judge hearing a divorce action,” Cooper answered. Smith replied: “Would he have to disclose, `Oh, I’ve been married, and we’ve been married for 24 years and we have a relationship that’s kind of difficult’? That’s what you are arguing here?” Cooper said the hypothetical situation Smith described was different because if Walker, who is now retired, had “desired to marry his partner, he would have stood in exactly the same shoes as the plaintiffs in this case.” David Boies, a lawyer representing the two same-sex couples who successfully sued to strike down Proposition 8 in Walker’s court, attacked Cooper’s reasoning, arguing that judicial ethics rules never have required judges to bow out of civil rights cases because they are members of the minority group whose constitutional rights are at issue. Cooper’s “perverse logic is that only judges, gay or straight, who have no interest in marrying and the institution of marriage would be the only ones who could hear this case,” Boies said. Judge Stephen Reinhardt, of California, asked if the presumption that Walker could be unbiased in a same-sex marriage case would be valid even if the judge had disclosed at the start of the trial that he planned to get married once the case were over and he legally could. “Mr. Cooper’s point is the absence of that information raises an obligation on the part of the judge to disclose whether he wants to get married or not,” Reinhardt said. “He says it’s relevant because it allows the public to determine whether there is a reason for recusal, and that applies not only to `Yes, I do intend to get married,’ but, `No, I do not intend to get married.” Boies answered that Walker had no obligation to reveal his personal thoughts on marriage either way, but that expecting him to have spoken up to disavow any interest in marrying his partner was “an intolerable double standard” for gay and lesbian judges. “A heterosexual judge may feel passionately about preserving the institution of marriage. Does that judge have an obligation to volunteer, to come forward, to tell the parties what his views of marriage are and his views of the institution of marriage?” Boies asked. The appeals court did not immediately rule on the matter. In June, Walker’s successor, Chief Judge James Ware, rejected the same arguments from the ban’s backers that Walker’s ruling should be overturned because he might personally benefit from declaring Proposition 8 unconstitutional. The hearing Thursday was over an appeal of Ware’s decision. The 9th Circuit panel also heard arguments on whether it should unseal video recordings Walker made of the January 2010 trial. After the U.S. Supreme Court barred the trial’s video broadcast beyond Walker’s courtroom, the judge had his staff record the proceedings but said they would only be viewed by him in his chambers to refresh his memory while he was preparing his opinion. Lawyers for the two couples and a coalition of media organizations that includes The Associated Press are asking the appeals court to make the recordings public. The 9th Circuit has said it needed to hear arguments on both the significance of Walker’s relationship and the public release of the trial videos before it can address the more substantive issue of whether Walker correctly struck down Proposition 8 on federal constitutional grounds. The appeals court panel heard arguments about that in January but does not face a deadline for making a decision. Continued here: Yet Another Day In Court For Prop 8

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Proposition 8 Case Faces Unclear Path Ahead

February 8, 2012

SAN FRANCISCO — Conservative critics like to point out that the federal appeals court that just declared California’s same-sex marriage ban to be unconstitutional has its decisions overturned by the U.S. Supreme Court more often than other judicial circuits, a record that could prove predictive if the high court agrees to review the gay marriage case on appeal. Yet legal experts seemed to think the panel of the San Francisco-based 9th U.S. Circuit of Appeals struck down the voter-approved ban on Tuesday purposefully served up its 2-1 opinion in a narrow way and seasoned it with established holdings so the Supreme Court would be less tempted to bite. The appeals court not only limited the scope of its decision to California, even though the 9th Circuit also has jurisdiction in eight other western states, but relied on the Supreme Court’s own 1996 decision overturning a Colorado measure that outlawed discrimination protections for gay people to argue that the voter-approved Proposition 8 violated the civil rights of gay and lesbian Californians. That approach makes it much less likely the high court would find it necessary to step in, as it might have if the 9th Circuit panel had concluded that any state laws or amendments limiting marriage to a man and a woman run afoul of the U.S. Constitution’s promise of equal treatment, several analysts said. “There is no reason to believe four justices on the Supreme Court, which is what it takes to grant (an appeal) petition, are champing at the bit to take this issue on,” University of Michigan law school professor Steve Sanders said. “The liberals on the court are going to recognize this was a sensible, sound decision that doesn’t get ahead of the national debate … and I don’t think the decision would be so objectionable to the court’s conservatives that they would see a reason to reach out and smack the 9th Circuit.” Lawyers for the coalition of religious conservative groups that qualified Proposition 8 for the November 2008 ballot and campaigned for its passage said they have not decided whether to ask a bigger 9th Circuit to rehear the case or to take an appeal directly to the Supreme Court. However, they said they were optimistic that if the high court accepts an appeal, Tuesday’s ruling would be reversed. “The 9th Circuit’s decision is completely out of step with every other federal appellate and Supreme Court decision in American history on the subject of marriage, but it really doesn’t come as a surprise, given the history of the 9th Circuit, which is often overturned,” Andy Pugno, the coalition’s general counsel, said in a fundraising letter to Proposition 8′s supporters. “Ever since the beginning of this case, we’ve known that the battle to preserve traditional marriage will ultimately be won or lost not here, but rather in the U.S. Supreme Court.” Regardless of their next steps, gay and lesbian couples were unlikely to be able to get married in California anytime soon. The 9th Circuit panel’s ruling will not take effect until after the deadline passes in two weeks for Proposition 8′s backers to appeal to a larger panel, and the earliest the Supreme Court could consider whether to take the case would be in the fall. Judge Stephen Reinhardt, who was named to the 9th Circuit by President Jimmy Carter and has a reputation as the court’s liberal lion, wrote Tuesday’s 80-page majority ruling with concurrence from Judge Michael Daly Hawkins, an early appointee of President Bill Clinton. Judge Randy Smith, who was the last 9th Circuit judge nominated by President George W. Bush, dissented. In tailoring the decision to apply only to California, Reinhardt cited two factors that distinguish Proposition 8 from the one-man, one-woman marriage laws and constitutional amendments in the other 9th Circuit states and that he said demonstrate that it “serves no purpose, and has no effect, other than to lessen the status and humanity of gays and lesbians.” The first is that California since 2005 has granted same-sex couples all the rights and benefits of marriage if they register as domestic partners. The second is that five months before Proposition 8 was enacted as a state constitutional amendment, the California Supreme Court’s Court had legalized same-sex marriage by striking down a pair of laws that had limited marriage to a man and a woman. California is the only state, therefore, where gays have won the right to marry and had it stripped away. The amendment’s “singular” work of denying gay Californians the designation of marriage while leaving in place domestic partnerships proves that Proposition 8′s deprive same-sex relationships of society’s dignity and respect, Reinhardt wrote. “A rose by any other name may smell as sweet, but to the couple desiring to enter into a committed lifelong relationship, a marriage by the name of `registered domestic partnership’ does not,” he said. “We are excited to see someone ask, `Will you marry me?’, whether on bended knee in a restaurant or in text splashed across a stadium Jumbotron. Certainly, it would not have the same effect to see, `Will you enter into a registered domestic partnership with me?’” The opinion goes on to draw parallels between California’s same-sex marriage ban and the Colorado opinion the Supreme Court struck down on a 6-3 vote after concluding that it was based on moral disapproval of gays. Justice Anthony Kennedy wrote the majority opinion in that case, known as Romer v. Evans, and if the court agrees to take up Proposition 8, the similarities could hit the “sweet spot” that might persuade him to side with four other justices in upholding the 9th Circuit, said Douglas NeJaime, an associate professor at Loyola Law School in Los Angeles. “Everyone is looking to Justice Kennedy, assuming that Justice Kennedy would not issue a sweepingly bad decision for gay rights, and yet people don’t know if he is ready to go so far as to say nationwide same-sex couples can get married,” NeJaime said. “I think the opinion evidences a real savviness about the posture of this case and its position in the trajectory of a national movement for marriage for same sex couples.” Smith, the lone dissenting judge, disagreed that Proposition 8 necessarily served no purpose other than to treat gays and lesbians as second-class citizens. He pointed out that its backers claimed it could serve to promote responsible child-rearing among opposite-sex couples, and said courts were obligated to uphold laws in the face of civil rights challenges unless they were “clearly wrong, a display of arbitrary power (or) not an exercise of judgment.” “There is good reason for this restraint,” Smith said. ___ Associated Press writers Paul Elias, Garance Burke and Terence Chea in San Francisco, and Raquel Dillon in Los Angeles contributed to this report. ___ Online: Originally posted here: Proposition 8 Case Faces Unclear Path Ahead

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Occupy Oakland Riot 327 Arrests

January 29, 2012
Occupy Oakland Riot 327 Arrests

The Occupy Oakland day-long protest turned violent with riot police and protesters injured as hundreds of angry demonstrators were arrested in a cloud of tear gas. “Occupy Oakland has got to stop using Oakland as its playground, and people in the community and people in the Occupy movement have to stop making excuses for this behavior,” Oakland Mayor Jean Quan declared after protesters broke into Oakland City Hall, destroyed exhibits and set an American flag on fire. Riot police moved in, firing grenades, tear gas and non-lethal projectiles at the violent mass of demonstrators who threw bottles, metal pipes, rocks, bricks, explosive devices and burning flares at officers of the Oakland Police Department . Oakland residents could hear hundreds of rioting protesters screaming, “Pigs! Pigs! Pigs!” while vandalizing buildings and cars well into the night as families attempted to get some sleep in their homes. Mayor Quan has reached the end of her tolerance regarding violent Occupy Oakland demonstrations. City Councilman Ignacio De La Fuente issued a strong statement, declaring, “It’s an escalation that, in my opinion, basically amounts to domestic terrorism.” The City of Oakland is being assisted by a coalition of law enforcement agencies from across the San Francisco Bay Area in its effort to stop the Occupy Oakland violence. OCCUPY OAKLAND RIOT ARRESTS Originally posted here: Occupy Oakland Riot 327 Arrests

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