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that on July 2, 2009, at 2:30 p.m., or as soon thereafter as the matter may be heard, before the Honorable Vaughn R. Walker, United States District Court, Northern District of California, 450 Golden Gate Avenue, San Francisco, California, Plaintiffs will move the Court for a preliminary injunction.

Plaintiffs respectfully request a preliminary injunction enjoining Defendants from enforcing Article I, § 7.5 of the California Constitution ("Prop. 8") insofar as it limits civil marriage in California to the union of a man and a woman, and prohibits two individuals of the same sex from getting married.

No, Texas is not suing California.  Kristen Perry, her partner, and two gay men are plaintiffs, and California officials are  defendants.  The motion for injunction has not been widely circulated.  

On July 2, 2009, there will be a hearing in federal court in San Francisco requesting that Prop 8 be stayed, and that the right to marry be restored to all Californians stripped of it by Prop 8 pending the conclusion of the case.  

In order to prevail on the motion for injunction the plaintiffs have to establish four things: a likelihood of success on the merits of the case at trial; irreparable harm to the plaintiffs if the injunction is not granted; the balance of hardships weighs in their favor; and public-interest considerations are in their favor. All are well argued.  The ruling is appealable immediately to the 9th Circuit, and an appeal of a ruling from that court can be had by writ of certiorari to the United States Supreme Court.  Should Plaintiffs prevail in the Ninth Circuit, the likelihood of SCOTUS review is established by the contrary opinion issued by the Eighth Circuit in Citizens for Equal Protection v. Bruning, 455 F.3d 859 (8th Cir. 2006).  See my analysis of the District Court case in this diary.

Not written for lawyers

This diary is not written for attorneys, but for those who truly own the law and equity our courts administer.  Technical terms and lengthy citations are anathema to this end - all citations except those to Loving v. Virginia, Romer v. Evans and Lawrence v. Texas have been omitted.  Complex jurisdictional arguments and the intricacies of Equal Protection analysis can wait.  The States of Arkansas and Texas gave me a license to deal with such things, and I have plenty of colleagues - but you who authorized and entrusted us with those licenses do deserve an explanation of what is happening.  Please do explore the full motion linked above if you have need of other citations, or just need to experience an uplifting read.  Remember though, this is the Plaintiffs' motion.  This being America, the Defendants actually will be permitted to file a response.  

I have also deliberately tried (and unavoidably failed) to avoid the tension between Gay Organizations and the lawyers who, zealously representing their own clients, have filed Perry v. Schwarzenegger.  We know the tension exists, but in the interest of unity let's give it a break and let Olson and Boies represent their clients, as every lawyer really does.  We have an adversary system of justice, and actually it works quite well.  Personally, I applaud the filing and prosecution of the federal case, as I think avoiding Federal Court telegraphs fear and weakness, and tee-teeing in our collective pants at the very mention of federal court does sort of make me wonder why we are so afraid of the Big Bad Wolf, though it is not my call as I do not represent these clients.  I also continue to be a cooperating attorney within the Lambda Legal network, without whom Iowa would not have happened.  Every front is important.  

I will say however that we cannot fund continuing state referenda in this economy.  Our people need to eat, play with their children, and enjoy interpersonal commerce,  as well as fight political battles.  

Cross Country Quilts and the Public-Interest Argument

A slow, meandering State by State approach to full equality will lead to a patchwork pattern of rights which will be not only untenable but also anti-competitive in the global marketplace, as American firms become handicapped in their ability to transfer GLBT employees who enjoy certain rights under the law (as well as under company policy) to states where no equivalent right is provided.  This results in a commercially untenable pattern of rights and denials of rights, perhaps best illustrated by Rhode Island.  


Till Death Do Us Join?  Rhode Island is poised to become the first (and last) state to introduce Domestic Partnerships into its law through the funeral code.  How very Providential.  Under proposed legislation Rhode Island will grant the right to domestic partnership, but only if one partner or the other is deceased.

A domestic partner is defined in the measure as "a person who prior to the decedent’s death was in an exclusive, intimate and committed relationship with the decedent."

I really prefer my partner to be breathing.  This absurdity is what patchwork state by state efforts yields.

I do not at all make light of the pain experienced by the surviving member of a gay relationship in such a painful event as being denied the right to bury one's de facto spouse.  I have my directive authorized under Texas Health & Safety Code Section 711.002 to authorize austex54 to handle arrangements regarding my remains - and if your state allows it you should with regard to your de facto spouse as well, if appropriate.

Commercial feasibility speaks volumes if argued correctly.  Major American companies and international companies such as Shell Oil almost all have very good diversity requirements and actually refuse to employ law firms which do not have minorities (including gays and lesbians) at the partner level.  When viewed as an economics problem, logistically to keep the wheels of commerce turning the entire country has to move at close to the same time.  Boston to Austin and lose your marriage?  Des Moines downriver to Little Rock and lose your child?

Remember we threw off prohibition in the great depression.  U.S. Const., Amend. XXI.  We cannot afford the luxury of religious bigotry in a failing economy.  Prohibition; Great Depression.  Religious Bigotry; Failed Economy.  Faith yes, but faith that works. Faith yes, but Faith that builds rather than destroys.

Olson will make this commercial argument well, and the American South actually was integrated on the basis of the Commerce Clause, so there is  precedent for commercial considerations.  Remember those lunch counters and Barbecue stands located near interstate highways in Alabama?  

Every Justice on this Court respects Ted Olson and David Boies.  Remember, Olson brings the national law firm of Gibson Dunn & Crutcher, of which he is a partner, with him.  

Two of Ted Olson's Gay Partners discuss the reality of being Gay at the firm here.

Essentially, the poor transcription I render is "The firm's policy is to treat Lesbian and Gay couples the same way they treat heterosexual couples."  Listen to it - the same child care benefits, spousal benefits.  The same.  Almost every significant law firm in America is like this.  Most major companies are as well - Dell employees in Austin have more rights through company policy than a GLBT state employee is afforded under Texas law.

Why?  We have done an excellent job of earning our rights in the marketplace. Gibson Dunn & Crutcher, and Olson's Gay and Lesbian partners are just one example.  Prop 8 actually restricts the viability of American firms at a time of economic crisis.  The conservative justices on the SCOTUS hear and understand arguments based on commercial reality.  This augments both the public interest and success on the merits arguments, and is expressed in these terms in the Motion, p. 14:

Classifications based on sexual orientation easily meet the criteria for suspect or quasi-suspect status. First, it is beyond dispute that "gay persons historically have been, and continue to be, the target of purposeful and pernicious discrimination due solely to their sexual orientation."  "[F]or centuries there have been powerful voices to condemn homosexual conduct as immoral" (Lawrence, 539 U.S. at 571), and this moral condemnation continues to find expression today in state-sanctioned discrimination that denies gay and lesbian individuals the right to marry, the right to serve in the military (10 U.S.C. § 654), and, in some States, the right to adopt children (see, e.g., Ark. Code § 9-8-304; Fla. Stat. § 63.042). This "history of purposeful unequal treatment" based on the sexual orientation of gay and lesbian individuals is the hallmark of a suspect classification.

Second, like the suspect classifications of race, alienage, national origin, and religion, sexual orientation has absolutely no "relation to the ability" of a person "to perform or contribute to society." Sexual orientation is simply irrelevant to whether someone can make a meaningful contribution to the social, political, or cultural life of this Nation.  Unlike age or mental disability—two classifications that receive rational basis scrutiny —it is impossible to identify "real and undeniable" differences in the ability of homosexuals and heterosexuals to function in, and contribute to, society. Indeed, the only limitations on the ability of gay and lesbian individuals to participate fully in all aspects of American life are those imposed by discriminatory laws or private discriminatory conduct.

We produce.  We are an essential building block of American commerce, which is, of course, the social intercourse and exchange of ideas which allows our people to function as a unit.  In universities, law firms, hospitals, commercial firms, and even the halls of Congress, we belong, and the marketplace of ideas and the consequent marketplace of goods and services have recognized our worth and our contribution to our society and culture.  And our productivity. It is high time the government did as well.

Loving v. Virginia, Romer v. Evans and Lawrence v. Texas - success on the merits

The "freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men." ,Loving v. Virginia. As a result, "[c]hoices about marriage" are "sheltered by the Fourteenth Amendment against the State’s unwarranted usurpation, disregard, or disrespect."  Despite the "fundamental importance" of marriage "for all individuals", the State of California prohibits gay and lesbian individuals from marrying the person of their choice.

Mildred Loving tells a compelling story.  She truly was an American heroine of love.

Although she was a very private person, Mildred Loving spoke out on the 40th anniversary of the Supreme Court case which gave her and her husband Richard the dignity of having their union recognized:

Surrounded as I am now by wonderful children and grandchildren, not a day goes by that I don’t think of Richard and our love, our right to marry, and how much it meant to me to have that freedom to marry the person precious to me, even if others thought he was the "wrong kind of person" for me to marry. I believe all Americans, no matter their race, no matter their sex, no matter their sexual orientation, should have that same freedom to marry. Government has no business imposing some people’s religious beliefs over others. Especially if it denies people’s civil rights.

Lawrence v. Texas established that moral traditions of a "majority" cannot support a law criminalizing the behavior of a minority which is merely considered traditionally immoral.  Every utterance of the phrase "Traditional Marriage" by the proponents of Prop 8 serves to magnify Justice Kennedy's word in Lawrence,  underscore our status as a maligned minority and move Lawrence more certainly into the sphere of equal protection.  The motion expresses the argument (p. 10) in these terms:

Ultimately, then, Prop. 8 seems to be premised on little more than the moral disapproval of homosexuality by a transitory majority of voters. Of course, this is a demonstrably improper ground for abridging fundamental constitutional rights. The Supreme Court has already made absolutely clear that "[m]oral disapproval" of homosexuals, "like a bare desire to harm the group, is an interest that is insufficient to satisfy" even rational basis review (Lawrence, 539 U.S. at 582), and it thus cannot possibly meet the onerous requirements of strict scrutiny. While [p]rivate biases may be outside the reach of the law," the "law cannot, directly or indirectly, give them effect" at the expense of a disfavored group’s fundamental constitutional rights.

Emphasis added.

The case of the Irrational Voter has already been decided, Motion, p. 12-13:

Prop. 8 is unconstitutional under even rational basis review because it irrationally deprives gay and lesbian individuals of the right to marry that they had previously possessed under California law . . . and still enjoyed by all other citizens of the State.

The Supreme Court has already invalidated one voter-enacted state constitutional provision that—like Prop. 8—stripped gay and lesbian individuals of legal protections they had previously enjoyed under state law. In Romer, the Court concluded that Colorado’s Amendment 2—which "prohibit[ed] all legislative, executive or judicial action at any level of state or local government designed to protect" gay and lesbian individuals and thereby overturned several local laws barring discrimination based on sexual orientation—was not rationally related to any legitimate governmental interest. 517 U.S. at 624. The Court determined that the measure "classifie[d] homosexuals not to further a proper legislative end but to make them unequal to everyone else." Id. at 635. Such a "bare . . . desire to harm a politically unpopular group," the Court emphasized, "cannot constitute a legitimate governmental interest." Id. at 634.

Prop. 8 suffers from the same constitutional flaw. The voter-enacted constitutional amendment stripped gay and lesbian individuals of their right to marry under the California Constitution . . . for no other reason than to express the majority’s moral disapproval of gay men and lesbians.

Traditional Marriage actually imposes the Democracy of the Dead on the Living.  Even in Texas we have given up canvassing the graveyards for votes.

And about those activist judges, an injunction is a remedy in equity, which requires courts to fashion remedies if there is a wrong, sometimes quite creatively.  Our Constitution vests all jurisdiction in law and equity in our federal courts, and thus actually requires activist judges.  U.S. Const., Art. III, §§ 1 and 2.

July 2, 2009.  Less than one month away.  Federal Court, San Francisco.  Prop 8 can be stopped in its tracks.  


Yes We Can, and eventually even the President will catch up with us.

Respectfully Submitted,



Originally posted to GLBT and Friends at Daily Kos on Fri Jun 05, 2009 at 08:30 AM PDT.

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