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View Diary: Bowers v. Hardwick was decided 25 years ago today (74 comments)

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  •  Thanks for the excellent diary, indie (9+ / 0-)

    We all had a great deal of hope that Bowers v. Hardwick would be ruled in our favor and God knows we needed good news at the height of the AIDS crisis. We were crushed when the Court ruled as it did. It appeared that we would never see the end of the marginilization, the hate. Romer v. Evans and Lawrence v. Texas would renew our faith in the justice system enough for us to pursue things like Perry v. Schwarzenegger, but we cannot forget that day 25 years ago when a part of our humanity was taken from us.

    •  Agreed, it's an issue of (5+ / 0-)
      Recommended by:
      EdSF, craigkg, sfbob, Zooey Glass, kyril

      "look what happened before, it can happen again." All a court really has to do is to just not care about whether gays have the liberties other people have. Either that, or some new moral panic which makes everyone fear gays again.

      The lesson is really that it's easy for our system to turn on us whenever it feels like it, and that there is a regime in place to facilitate that. And this is a system we have to rely on for our rights. It's fucking scary, even WITH the advancements.

      "I will never compromise on my commitment to equal rights for all LGBT Americans." - President Obama, 2/28/08

      by indiemcemopants on Thu Jun 30, 2011 at 01:57:19 PM PDT

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    •  It's worth noting too (8+ / 0-)

      Perry V. Schwarzenegger was NOT an officially Gay, Inc approved action. The major legal forces in our community were not inclined to take the case on, precisely out of fear the system would screw us as it did Hardwick.

      It took too straight guys, maybe with a little more faith in the system, to fight for what's right.

      The case is clearly in good hands, so it's all good.

      Is the LGBT community inclusive enough to embrace the glitter-dispersal impaired? Discuss.

      by Scott Wooledge on Thu Jun 30, 2011 at 02:13:01 PM PDT

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      •  Good point. (6+ / 0-)

        Kind of forget about that now.

        But yeah, it's in pretty damn good hands.  Maybe even better than Gay, Inc.'s hands considering who these two are and their backgrounds.

        One should no more deplore homosexuality than left-handedness. ~Towards a Quaker View of Sex, 1964 (Proud left-handed queer here!) SSP: wmlawman

        by AUBoy2007 on Thu Jun 30, 2011 at 02:16:37 PM PDT

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      •  I do doubt its (4+ / 0-)
        Recommended by:
        EdSF, craigkg, sfbob, kyril

        ultimate impact outside California though. Unless SCOTUS decides to go against their trend and randomly expand standing for this issue.

        "I will never compromise on my commitment to equal rights for all LGBT Americans." - President Obama, 2/28/08

        by indiemcemopants on Thu Jun 30, 2011 at 02:18:09 PM PDT

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        •  We'll see. (8+ / 0-)

          Such prognostications are above my pay grade.

          I think Olsen and Boies took the case because they saw the potential for a sweeping landmark decision. So it strikes me within the realm of possibility.

          But the standing issue at appeal may thwart that. Not something they could have foreseen easily.

          Is the LGBT community inclusive enough to embrace the glitter-dispersal impaired? Discuss.

          by Scott Wooledge on Thu Jun 30, 2011 at 02:30:37 PM PDT

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          •  I'm not so sure they didn't consider it (2+ / 0-)
            Recommended by:
            indiemcemopants, kyril

            They're pretty thorough. I can't imagine them not viewing the issue of standing at the point of an appeal. In fact, even having it be questioned would seem to boost their chance of at least getting a win on Prop 8 at the state level.

            I'd be more inclined to believe they took the case under the supposition that the law didn't stand a chance if it were actually put on trial and that, even if the ruling applied only to the State of California because lack of standing by the defender-appellants kept it from advancing further, it would provide an enormous precedent. After all, if the court had ruled against the plaintiffs, there'd be no question as to their right to continue appealing, while a finding for the plaintiffs might well come to an end at the circuit court level which would still provide the minimum relief the plaintiffs are seeking.

            •  Well, I am sure they considered it. (1+ / 0-)
              Recommended by:
              kyril

              But also considered that had Harris lost (which she almost did) the standing issue would not be inhibiting the path to the SCOTUS.

              Is the LGBT community inclusive enough to embrace the glitter-dispersal impaired? Discuss.

              by Scott Wooledge on Thu Jun 30, 2011 at 04:11:37 PM PDT

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              •  We don't know that. (2+ / 0-)
                Recommended by:
                Clarknt67, sfbob

                By the time the other guy (forgetting his name) would have been sworn in, the case had already been heard at the 9th Circuit.

                Would he have been allowed to come in at that point?  Maybe not.  In fact, probably not.

                One should no more deplore homosexuality than left-handedness. ~Towards a Quaker View of Sex, 1964 (Proud left-handed queer here!) SSP: wmlawman

                by AUBoy2007 on Thu Jun 30, 2011 at 05:02:59 PM PDT

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                •  I am sure he would have tried. (0+ / 0-)

                  He said so in the campaign. Would the Justices bent over backward to look fair? Who knows?

                  Is the LGBT community inclusive enough to embrace the glitter-dispersal impaired? Discuss.

                  by Scott Wooledge on Thu Jun 30, 2011 at 07:10:22 PM PDT

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                  •  Sorry but no. (1+ / 0-)
                    Recommended by:
                    Clarknt67

                    Not this time.  The failure to file a timely notice of appeal is jurisdictional.  The state failed to file an appeal from the judgment.  At that point, the judgment became final with respect to the state, and the Ninth Circuit could not have entertained an appeal filed beyond the appeal period.

                    Nor do I think the state would have been permitted to intervene on appeal.  That would basically be allowing an untimely notice of appeal through the back door.

                    The most a Republican AG could have hoped for was to file an amicus brief.  But he'd have been in the supremely awkward position of contradicting the filing the state had made below.  

                    "Ça c'est une chanson que j'aurais vraiment aimé ne pas avoir écrite." -- Barbara

                    by FogCityJohn on Thu Jun 30, 2011 at 09:56:21 PM PDT

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                •  Definitely not (1+ / 0-)
                  Recommended by:
                  AUBoy2007

                  Remember your appellate procedure, young lawyer.  The filing of a timely notice of appeal is jurisdictional.  Without a timely notice of appeal, the Court of Appeals literally has no power to hear a party's case.

                  "Ça c'est une chanson que j'aurais vraiment aimé ne pas avoir écrite." -- Barbara

                  by FogCityJohn on Thu Jun 30, 2011 at 09:57:55 PM PDT

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      •  After the CA supreme Court (2+ / 0-)
        Recommended by:
        indiemcemopants, sfbob

        upheld Prop H8 in May 2009, I was hurting bad but I remembered Romer v. Evansand the glimmer of hope that the Federal Court sysytem was beginning to view us a class of citizens unjustly discriminated against. I embraced AFER's annoucement of action and began to see just how poorly Gay, Inc. was serving our community in opposing it. I had gone to One Struggle, One Fight ( a precursor to GetEqual)meetings and actions here in SF and realized that in the post-PropH8 world, it is going to take everything, courts, legislatures, ballots, the streets to win this fight. In the meantime, Olson and Boies, Judge Walker, Andrew Cuomo and the NYS legislature, Dan Choi and GetEqual have begun to show us the way!

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