SCOTUS: Same-Sex Marriage Opponents Must Reveal Names Of Their Donors

Via the Associated Press:

The Supreme Court has turned away an appeal from same-sex marriage opponents in California who want to keep the identities of their campaign donors secret. The justices on Monday let stand a lower court ruling against ProtectMarriage.com, the National Organization for Marriage and other supporters of a 2008 ballot initiative that outlawed same-sex marriages in California until the ban was overturned five years later. The groups sought to conceal their past and future campaign finance records because they feared harassment of donors. The 9th U.S. Circuit Court of Appeals ruled against them in part because the names have been publicly available for five years. State law requires political committees to identify those who contribute more than $100 during or after a campaign, along with the donor's address, occupation and employer.

Lawlessness! Judicial activism!

Prop 8 Backers Money Beg On SCOTUS: True Marriage Is Making A Comeback

"Finally, the outrageous rulings of activist judges around the nation--that nullified the will of millions of citizens who voted to preserve traditional marriage--will come under Supreme Court scrutiny. We could be on the cusp of a huge comeback for true marriage! I remain confident that the Supreme Court will uphold the states’ rights to define marriage. Even as Justice Anthony Kennedy wrote the majority opinion striking down the federal Defense of Marriage Act (DOMA) in 2013, he did so because it infringed upon the states’ authority over marriage. He relied on the states’ 'essential authority to define the marital relation' and our nation’s 'history and tradition of reliance on state law to define marriage.' As a key swing vote on the Supreme Court, Justice Kennedy’s viewpoint could very well determine the outcome here. Now it's time to pull out all the stops for this final battle for marriage in the legal system. Will you help? Please help us fight this battle with your tax-deductible and confidential contribution of any size." - Protect Marriage head Andy Pugno, via email.

REUTERS: Major American Law Firms Have Reached Their "Mozilla Moment"

Reuters reports that as marriage equality barrels back to the Supreme Court, major law firms are jumping on board, but only on the side of the good guys.

A Reuters review of more than 100 court filings during the past year shows that at least 30 of the country's largest firms are representing challengers to state laws banning same-sex marriage. Not a single member of the Am Law 200, a commonly used ranking of the largest U.S. firms by revenue, is defending gay marriage prohibitions. These numbers and interviews with lawyers on both sides suggest that the legal industry has reached its Mozilla moment. The software company's CEO, Brendan Eich, resigned in April after being denounced by gay marriage supporters for a donation he had made in support of California's since-overturned gay marriage ban. Now in a similar vein, attorneys at major law firms are getting the message that if they want to litigate against gay marriage they should do so elsewhere.

Most of the involved law firms are working pro bono or at reduced rates. Anthony Pugno, lead attorney at Protect Marriage, says there are lawyers at major firms who would gladly defend marriage bans, but they are too "terrified" to speak out to their colleagues. Which is a real shame.

NOM Loses Again, Ninth Circuit Court Upholds Prop 8 Donor Disclosure Law

NOM has lost again. In a 2-1 decision, the Ninth Circuit Court of Appeals has upheld the California law which requires that names of donors to public ballot measures be made public.

Sponsors of Proposition 8, the now-overturned initiative allowing only opposite-sex couples to marry in the state, complied with the disclosure law during the 2008 campaign and said some of their donors were targeted for threats and harassment. After unsuccessfully challenging the disclosure requirements, they sought to require the state to remove the names from its website and exempt them from the law in any future campaigns on related issues. But the Ninth U.S. Circuit Court of Appeals in San Francisco said the disclosure law has long been established as a constitutional measure to inform the public about campaign financing, and the current suit is pointless because the donors' names are publicly known.

The dissenting judge said that the court could consider future requests for exemption from the law based on the claims of harassment made by NOM and Protect Marriage.

The Center for Constitutional Jurisprudence's [and NOM chairman] John Eastman represented the plaintiffs. He said in an interview on Tuesday that he was actually encouraged by the ruling because it did not deny the groups' claims on their merits. That bodes well for the groups' challenges to similar disclosure rules in other jurisdictions, Eastman added. "We've got people that have been shot at," he said. "We easily meet the Supreme Court's standard for exemption from disclosure laws, and this court seems to recognize that." Eastman cited the majority's finding that the case might have ended differently had the plaintiffs appealed the denial of a preliminary injunction in 2009 - before the challenged information was so widely disseminated. "I think the opinion strongly suggest that we would have prevailed on such an effort," Eastman said, adding that he may use the ruling in potential future challenges to gay-marriage ballot initiatives in "half a dozen other states."

(Tipped by JMG reader Steve)

Lawyer Who Defended Prop 8 At SCOTUS Is Changing His Mind On Gay Marriage

Protect Marriage attorney Charles Cooper, who last year argued against the overturn of Proposition 8 before the Supreme Court, says his opinion on gay marriage is "evolving" now that his own daughter is planning to marry a woman.

The revelation is an unexpected footnote in the years-long debate over Proposition 8, the California measure struck down by the Supreme Court last year. It is also offers a glimpse, through the eyes of one family, of the country's rapidly shifting opinions of gay marriage, with most public polls now showing majorities in favour of allowing the unions. Cooper learned that his stepdaughter Ashley was gay as the Proposition 8 case wound its way through appellate court, according to a forthcoming book about the lengthy legal battle.

And with the Supreme Court ruling now behind him, Cooper cast his personal opinion on gay marriage as an evolving process. "My views evolve on issues of this kind the same way as other people's do, and how I view this down the road may not be the way I view it now, or how I viewed it ten years ago," Cooper said in journalist Jo Becker's book "Forcing the Spring: Inside the Fight for Marriage Equality." Cooper's words are reminiscent of the language President Barack Obama used throughout his first term to describe his "evolving" views on gay marriage. In 2012, Obama announced publicly that he did, in fact, support the rights of same-sex couples to marry.

Cooper's daughter will marry in Massachusetts in June. He says, "My daughter Ashley's path in life has led her to happiness with a lovely young woman named Casey, and our family and Casey's family are looking forward to celebrating their marriage in just a few weeks."

HRC president Chad Griffin reacts: “I spent the better part of five years sitting across courtroom aisles from Mr. Cooper, disagreeing with just about every word that came out of his mouth, but I have profound respect for his decision to love and celebrate his daughter and her fiancée because his story reflects the experience of so many of the 90 percent of Americans who personally know someone who is LGBT."

Proposition 8 plaintiffs Kris Perry and Sandy Stier react: "We were so moved to hear of the Cooper family's constant love and support of their own daughter, even as the Perry case was in full swing and Mr. Cooper was spending his days planning Prop 8's defense. Some may find this contrast between public and private jarring, but in our opinion, loving an LGBT child unequivocally is the single most important thing any parent can do. We are overjoyed for Ashley and her fiancée, and we wish them the very best."

Will Brian Brown issue his usual denouncement?

CALFORNIA: Protect Marriage Sues To Have Donor Names Stricken From Record

Protect Marriage has filed a lawsuit which demands that the names of their donors during the 2008 Prop 8 campaign be stricken from state records. Because the gays have been mean to them.

At a hearing Friday before the Ninth U.S. Circuit Court of Appeals in San Francisco, backers of the hotly contested and now-overturned ballot measure, Proposition 8, sought to keep confidential the names of contributors of $100 or more. But members of the three-judge panel quickly pointed out that the identities of Prop. 8's donors have already been released by court order. "They've got all this information on the Internet. You want us to ignore it?" asked Judge Milan Smith. "How can this court redress the grievance that you have?" asked Judge Sandra Ikuta. By ordering the state to remove the names from its website and seal its files, and by granting an exemption for future elections, replied James Bopp, lawyer for Prop. 8's main sponsors, a conservative religious coalition called Protect Marriage. He said the organization expects to take part in additional "campaigns regarding protecting marriage."

Are they planning to put marriage back on the California ballot?

Prop 8: Really Most Sincerely Dead

Breaking news out of California:

The California Supreme Court refused Wednesday to revive Proposition 8, ending the last remaining legal challenge to same-sex marriage in the state. Meeting in closed session, the state high court rejected arguments by ProtectMarriage, Proposition 8’s sponsors, that only an appellate court could overturn a statewide law. In its challenge before the state’s highest court, ProtectMarriage argued that a single judge lacked the authority to overturn a state constitutional amendment. The group also contended that Walker’s injunction applied to two counties at most and that state officials had overstepped their authority by ordering county clerks throughout California to issue same-sex marriage licenses. State officials countered that the challenge was a veiled attempt to persuade a state court to interfere with a federal judge’s order in violation of the U.S. Constitution.

And that's that, folks!

CALIFORNIA: San Diego County Clerk Drops Bid To Stop Same-Sex Marriages

San Diego's Union-Tribune reports:

San Diego County Clerk Ernest Dronenburg has withdrawn a petition asking the state Supreme Court to rule on whether same-sex marriages have truly become legal in California. In a news release sent out Friday afternoon, Dronenburg said he canceled the petition because it covered the same ground as another petition filed earlier to the court.  The first petition was filed July 12 by Dennis Hollingsworth and others. Hollingsworth, a former state senator, has worked with ProtectMarriage.com in support of Proposition 8, which amended the state Constitution to define marriage as a union between a man and a woman. Dronenburg said he was withdrawing his petition, which he filed July 19, to speed up the legal process that he hopes will clarify the current legal standing of Prop. 8.

SF City Attorney Dennis Herrera: The Attempt To Reinstate Prop 8 Is Doomed

"This motion is a desperate obstruction tactic used in the vain hope of pursuing an unconstitutional agenda. The opponents of the freedom to marry have chosen to ignore the Supremacy Clause of the Constitution, a U.S. Supreme Court ruling, and the well-settled California marriage case of Lockyer v. San Francisco, which they themselves celebrated at the time. Their motion has essentially no chance to succeed. The most basic concepts of American law tell us that a state court cannot and will not overrule the federal judiciary. The citizens of California are left wondering when these people will realize that, having lost the moral struggle years and years ago, they have now lost the legal struggle as well. Marriage equality is now the law in the State of California, and will remain so from this point onward. Together we will soon see the day when it is the law all across America." - San Francisco City Attorney Dennis Herrera, via press release.

Protect Marriage Files CA Supreme Court Demand To Reinstate Proposition 8

Via press release from Protect Marriage:

Moments ago, we filed a new petition in the California Supreme Court against all of California’s 58 county clerks, and state officials, seeking to restore the enforcement of Proposition 8, the state’s constitutional amendment limiting marriage to a man and a woman.  The undeniable fact is, the man-woman definition of marriage, as passed by a majority the voters, is still a valid part of our state constitution.

Yet county clerks statewide are lawlessly defying that law by issuing gender-neutral marriage licenses. We are asking California’s Supreme Court to restore the rule of law and the public’s confidence in the integrity of the initiative process.

The action we filed today contends that at least 56 of the 58 county clerks must continue to follow Proposition 8 because they were not parties to the recent federal lawsuit against Prop 8, and that the state’s governor and attorney general have no legal authority to order local county clerks to disregard the state constitution.

Our petition also reminds the justices that our opponents, the attorneys for the plaintiffs who challenged Prop 8, have repeatedly admitted that the 56 county clerks not involved in their case “are not directly bound by the injunction” issued by a single San Francisco judge against Prop 8. In fact, "super-lawyer" David Boies told the courts that “the scope of the injunction is quite limited”, and at least the 56 county clerks would remain free to “refuse a marriage license to a same-sex couple…without violating the injunction.”

Read the full filing by Protect Marriage.

Supreme Court REJECTS Bid To Stop Same-Sex Marriage In California

The Los Angeles Times reports:

The Supreme Court rejected an emergency request to stop same-sex marriages in California, a lawyer for the gay couples who sued said Sunday. Theodore J. Boutrous Jr., one of the lawyers who challenged Proposition 8, said that he had just received word from the court Sunday morning that Justice Anthony M. Kennedy denied a request by ProtectMarriage, the sponsors of Proposition 8, to halt the marriages.

Boutrous said that Kennedy, who handles petitions from the Western states, did not comment on the decision. The 9th Circuit normally waits 25 days before acting on a case just decided by the Supreme Court. But in a surprise move, a three-judge panel that included liberal jurist Stephen Reinhardt lifted a hold it had placed on a 2010 injunction ordering state officials to stop enforcing the gay marriage ban.

And ALL of Teabagistan has a giant and simultaneous group case of the sadz.

Protect Marriage Files "Emergency" Petition To SCOTUS Demanding Reversal Of Lifted Stay On Prop 8 Overturn

Via press release from Protect Marriage:

Today our Prop 8 Legal Defense Team filed an emergency petition to U.S. Supreme Court to stop the Ninth Circuit's premature move requiring same-sex "marriage" licenses in California. The petition, prepared overnight by our good friends at Alliance Defending Freedom, was submitted Saturday to Justice Anthony Kennedy, the associate justice who decides such motions pertaining to the Ninth Circuit. On Wednesday, Justice Kennedy had agreed with our view that the voice of the voters must heard in a case like this challenging an initiative proposition.

When the Ninth Circuit originally put in place its stay to prevent same-sex marriage pending Supreme Court action, it stated clearly that “the stay shall continue until final disposition by the Supreme Court.” Under Supreme Court procedural rules, "final disposition" comes when the Supreme Court issues a "mandate" to the Ninth Circuit, at least 25 days after announcing its opinion in the case. The 25-day waiting period is provided to allow parties like us to petition the Supreme Court for a re-hearing of the case.

Today's petition asks the Supreme Court to find that the Ninth Circuit had no jurisdiction to order same-sex marriages on Friday, since the case had not yet come back down from the nation's highest court.

Suspiciously, the Ninth Circuit's announcement late Friday ordering same-sex marriages came as a surprise, without any warning or notice to Proposition 8's official proponents. However, the same-sex couple plaintiffs in the case, their media teams, San Francisco City Hall, L.A. Mayor Antonio Villaraigosa and the California Attorney General all happened to be in position to perform same-sex marriages just minutes after the Ninth Circuit's "unexpected" announcement.

Read the full petition.

SCOTUSblog says they are wasting their time.

As a formal matter, the Ninth Circuit did not put the Supreme Court’s ruling in the Proposition 8 case into effect prematurely. The Supreme Court held that the proponents of Proposition 8 could not file appeals in federal court. That ruling says nothing about imposing or lifting a stay on same-sex marriage. The court of appeals likely has the authority to act with respect to its own previously entered stay, which is a form of controlling its own docket. Although the court of appeals had previously stated that they stay would remain in effect until the Supreme Court’s ruling was final, it presumably can change its mind.

Protect Marriage Is OUTRAGED That Ninth Circuit "Jumped The Gun" On Prop 8

"We just received word that the Ninth Circuit, without waiting for the Supreme Court’s decision to become final and depriving us of our right to ask for reconsideration, has rushed forward to order same-sex marriage licenses.  This outrageous act of judicial tyranny tops off a chronic pattern of lawlessness, throughout this case, by judges and politicians hell-bent on thwarting the vote of the people to redefine marriage by any means, even outright corruption.

"Homosexual marriage is not happening because the people changed their mind. It isn’t happening because the appellate courts declared a new constitutional right. It’s happening because enemies of the people have abused their power to manipulate the system and render the people voiceless. The resumption of same-sex marriage this day has been obtained by illegitimate means. If our opponents rejoice in achieving their goal in a dishonorable fashion, they should be ashamed. It remains to be seen whether the fight can go on, but either way, it is a disgraceful day for California." - Yes On 8 head Andy Pugno, in very very very upset press release.

Yes On 8 Head Has The Supreme Sadz

"While it is unfortunate that the Court’s ruling does not directly resolve questions about the scope of the trial court’s order against Prop 8, we will continue to defend Prop 8 and seek its enforcement until such time as there is a binding statewide order that renders Prop 8 unenforceable. We are also especially grateful and humbled by the consistent prayers and support of traditional marriage supporters everywhere throughout this long and difficult case." - Protect Marriage head Andy Pugno, via email.

Yes On 8 Head: Let's Pray My 18 Years Of Anti-Gay Work Wasn't For Nothing

"Looking back, this has been a very long journey. Four years ago we upheld Proposition 8 in the California Supreme Court. Five years ago we passed Proposition 8. Thirteen years ago we passed its predecessor, Proposition 22. And eighteen years ago I had the honor of shepherding legislation to protect traditional marriage when it first came under attack in the California Legislature in 1995. After nearly two decades of battle, let's hope and pray for a just and definitive outcome." - Protect Marriage general counsel Andy Pugno, via press release.

Prop 8 Backers Speak Outside Court

Protect Marriage lead counsel Andy Pugno seems resigned to a narrow loss. "A victory for US would be to return this issue to the voters of the states."

Protect Marriage: We're Confident

"Maybe it's just me, but it seems that some 'journalists' covering the Prop 8 case are downright giddy about the possibility of marriage being re-defined by unelected judges. No wonder most of the media coverage of Prop 8 bears no resemblance to the reality that most Americans still favor protecting marriage as the special union of the opposite sexes.

"But I'm confident that Tuesday morning, at 10 a.m Eastern time (7:00 a.m. Pacific), as the justices file into the courtroom, the buzz of the media will fade away and the focus will return to where it belongs---to the text of the United States Constitution and the key legal question of whether states must recognize same-sex relationships as 'marriage.'

"If you can, please join us in prayer and sacrifice at this crucial hour. We're honored to represent you in fighting to uphold the people's right to maintain traditional marriage, and we look forward to winning this epic contest together." - Protect Marriage general counsel Andy Pugno, via email.

Protect Marriage: We Caught Judge Vaughn Walker Working With Ted Olson

Three months ago now-retired Prop 8 Judge Vaughn Walker emailed Ted Olson to ask whether he should attend next week's oral arguments at the Supreme Court. Armed (somehow) with a copy of that email, Protect Marriage is claiming that Walker's request demonstrates "the cozy relationship between Walker and our opponents, casting even more doubt on the legitimacy of Walker's one-sided and unprecedented handling of the 2010 trial against Prop 8."  This news comes via a breathless "breaking" alert from Protect Marriage which links to a website that reports the story with this disclaimer:

This blog post is a piece of journalism, breaking a story that should be of public interest regarding the conduct of a former jurist on a significant case. This site does not advocate an anti-gay rights agenda, and the proprietor of this web site is a supporter of gay marriage (although he disapproves of the imposition of gay marriage on society through judicial fiat).

Nor does this web site assert that Walker, Olson, or Olson’s partner has engaged in any breach of legal ethics. Walker’s views on the decision are no secret: he has spoken since retirement of his belief that the case was appropriately brought and that his decision was correct. It is not shocking that a judge would defend a decision he has already made.

But the behavior of Walker, as revealed by these emails, creates the appearance of a partisan rather than an impartial former jurist who simply believes he issued a correct ruling. Walker was so invested in his ruling that he wanted to watch the appellate courts’ argument himself. He went out of his way to make sure that he consulted with the winning side to help them prevail in the appellate courts. 

Meh. This is nothing.

Protect Marriage: WE'RE BROKE

Protect Marriage, the primary backers of Proposition 8, is reportedly so in debt to their lawyers that it may affect their ability to defend their Supreme Court case.

ProtectMarriage.com, the advocacy group defending a California gay marriage ban now under review by the high court, showed a $2 million deficit in its legal fund at the end of 2011 - the third year in a row that expenses exceeded donations, federal tax records show.  The 2012 accounts are not yet available. ProtectMarriage.com says it has since covered the 2011 shortfall. However, it is still $700,000 short in fundraising for its Supreme Court costs, according to a ProtectMarriage.com attorney, Andrew Pugno.

That message has gone out to donors, with some urgency, as the Supreme Court prepares to hear arguments in March in its first thorough review of same-sex marriage. "Unless the pace of donations starts to pick up right away, we could soon be forced over a financial cliff," ProtectMarriage.com said in an email to donors earlier this month. ProtectMarriage.com's lead outside counsel, Charles Cooper, has not stopped work on the Supreme Court case, although he declined to comment on financial arrangements with clients.

Speaking of Charles Cooper, his firm has been raking in the millions.

At the close of 2009, ProtectMarriage.com had a deficit of roughly $220,000, but the trial was expensive: Cooper's firm billed $4.5 million in 2010 and total expenses came to $6.1 million, for a year-end deficit of $1.8 million. ProtectMarriage.com raised $2.5 million in 2011, but it still fell more than $200,000 short of that year's expenses, leaving a cumulative deficit of $2 million.

Now that this story has hit the national press, watch the money roll in.

Prop 8 Backers File First SCOTUS Brief

Today the legal team representing Protect Marriage, the backers of Proposition 8, filed their first brief at the Supreme Court. Chris Geidner has the story at Buzzfeed:

Arguing that the case brought by same-sex couples seeking to marry was unlike past gay rights cases where the court struck down anti-gay restrictions and also unlike Loving v. Virginia, in which the court struck down bans on interracial marriage, the proponents of Proposition 8 argue that there is no historic reason "for invalidating marriage as it has existed in California for virtually all of its history, as it was universally understood throughout this Nation (and the world) until just the last decade, and as it continues to be defined in the overwhelming majority of States and Nations."

Geidner clips this passage from the brief:

Our Constitution does not mandate the traditional gendered definition of marriage, but neither does our Constitution condemn it. This Court, accordingly, should allow the public debate regarding marriage to continue through the democratic process, both in California and throughout the Nation.

Arguments in the case are scheduled to begin on March 26th.

Among the numerous articles listed in the "authorities" portion of the Protect Marriage brief are two essays by homocon writer and marriage equality supporter Jonathan Rauch.  From a December 2012 article penned by Rauch for The New Republic:

I tell my gay friends: imagine if the Supreme Court had ordered gay marriage this past June, at the end of its 2011-2012 term. November’s game-changing electoral victories would never have happened. Gay marriage advocates would be forever stereotyped as political losers who won by running to mommy. Our opponents would mock and denigrate our marriages as court-created, legalistic fictions. The country would never have shown how much it has changed.  If we have come that far in five years, imagine where we might be in five more. Imagine, then, the opportunities to extend and consolidate support that we will lose if the Supreme Court steps in now. Strange but true: a favorable Supreme Court intervention next year would make us weaker, not stronger.