LGBT Rights

Proposition 8 Trial Begins

January 11, 2010

The trial in Perry v. Schwarzenegger, the challenge to Proposition 8, began in the San Francisco courtroom of federal judge Vaughn Walker on January 11. Minutes before the proceeding began, the U.S. Supreme Court barred broadcast of the trail on YouTube and at federal courthouses throughout California. The high court, with one dissenter, granted the request of conservative proponents of Proposition 8, who argued that broadcast of the trial could result in harassment of witnesses testifying in favor of the November 2008 initiative that altered the state constitution to prohibit marriages between gay people. Attorneys representing couples challenging Proposition 8 had countered that the trial is of tremendous interest to Californians and people throughout the world, and that the public has a right to know courtroom proceedings.

The central question in the trial is whether Proposition 8 violates the federal constitution's guarantee of equal protection under the law. Legal experts anticipate that the case will eventually reach the U.S. Supreme Court. In May 2008, the California Supreme Court ruled that California's law barring same-sex marriage violated the state constitution. Between June and November 2008, thousands of gay couples legally married in California. But on November 4, voters narrowly passed Proposition 8. In May 2009, the state supreme court upheld Proposition 8.

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U.S. Supreme Court blocks YouTube broadcast of the nation's first trial on the right of same-sex couples to marry.

Supreme Court to Hear Two Marriage Equality Cases

December 10, 2012

On December 7, the United States Supreme Court announced that it would review legal challenges to California's Proposition 8, which bars gay and lesbian couples from marrying, and the federal Defense of Marriage Act, which denies federal recognition and marriage benefits to same-sex couples.

In Hollingsworth v. Perry, the Proposition 8 case, the high court will address two essential questions:  does California’s exclusion of same-sex couples from marriage violate the Equal Protection Clause of the U.S. Constitution?; and do the backers of Proposition 8 have standing to defend it in court in the first place?

After the California Supreme Court ruled in May 2008 that the state's existing law banning same-sex marriages violated the state constitution, lesbian and gay couples could legally marry in California. But in November 2008, voters passed Proposition 8 by a narrow margin. The measure amended the the state constitution to limit marriage to between a man and a woman. 

Three same-sex couples filed suit in federal court, saying Proposition 8 violates the U.S. Constitution's guarantee of equal protection and that the right to marriage cannot be limited to heterosexuals.

If the justices rule in favor of the couples in the Hollingsworth case, the ruling could take a number of forms.  The court could overturn every state constitutional provision and law restricting marriage to heterosexual couples.  Or it could overturn just Proposition 8, limiting the ruling only to California, as a federal appeals court ruled earlier this year. The Court could also avoid ruling altogether on the constitutional question and find that the backers of the measure have no legal standing to defend it in court, presumably meaning that prior court rulings striking down Proposition 8 would stand.

However, if the court upheld Proposition 8, it would leave open the effort to expand fair marriage laws state by state.  At present, 30 states – including California – have amended their constitutions to exclude same-sex couples from marriage, though California and several others offer those couples comprehensive domestic partnerships or civil unions. 

The high court will also hear the case of Edith Windsor, an 83-year-old widow who inherited the estate of her deceased wife, Thea Spyer. Because the federal government does not recognize Windsor and Spyer's marriage, Windsor was ordered to pay more than $360,000 in estate taxes. Had Windsor been married to a man, she would not have to pay any estate tax.

Recent elections have indicated a sea change in public attitudes towards marriage for same-sex couples. In November, voters in Maine, Maryland and Washington approved ballot measures allowing lesbian and gay couples to wed. Polls this year show 54% of Americans support the freedom to marry.

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Justices to rule on a challenges to California's Proposition 8 and the federal Defense of Marriage Act.

Inquiries Into Government Employees' Private Lives Constitutional

January 19, 2011

On January 19, the United States Supreme Court ruled 8-0 that the federal government can inquire about the personal finances, mental and emotional stability, and other personal matters of government contractors.

The high court overturned a 2008 Ninth Circuit Court of Appeals ruling that such inquiries had little connection to security or other government concerns.

The lawsuit was brought by 28 scientists and engineers working for the NASA-funded Jet Propulsion Laboratory who objected to the invasive government background checks. The employees, most of whom have worked for decades for the California Institute of Technology under a contract with NASA, had passed background checks when they were first hired. However, a 2004 Bush administration order compelled them to undergo a second background check in order to meet increased security standards.

Writing for six of the justices, Justice Samuel Alito ruled that such inquiries into the private lives government employees and contractors were "reasonable investigations."

However, he also said that he assumed a federal right to informational privacy exists, but that the background checks in question did not violate that right.

This drew a critical concurring opinion from Justice Antonin Scalia, joined by Justice Clarence Thomas, who lambasted the rest of the court for accepting a federal right to privacy. 

Since 1965, the U.S. Supreme Court has recognized a federal right to privacy. In 1972, voters amended the California Constitution to add an explicit right to privacy.

None of the workers who brought the lawsuit were assigned to top-secret projects, but they nevertheless faced investigations, including probes into their medical and financial records, emotional and psychological condition, and other personal matters.

Justice Elena Kagan recused herself because as Solicitor General she was involved in the case.

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United States Supreme Court rules that government investigations of employees' and contractors' personal lives, finances, and emotional health are "reasonable" and do not violate the right to informational privacy.

Governor and Attorney Cannot Be Forced to Defend Proposition 8

September 3, 2010

The Third District Court of Appeal in Sacramento denied the Pacific Justice Institute's request to compel Governor Arnold Schwarzenegger and Attorney General Jerry Brown to defend Proposition 8 in the challenge to the same-sex marriage ban currently pending in federal court.

Both Schwarzenegger and Brown supported U.S. District Judge Vaughn Walker's August 4 decision striking down Proposition 8 as a violation of the federal constitution's due process and equal protection guarantees.

The Pacific Justice Institute said it would appeal the state appellate court's decision to the California Supreme Court.

If the state supreme court does not force the governor and attorney general to defend Proposition 8, and if the federal court does not allow "Protect Marriage," the group of conservative religious organizations that supported Proposition 8, to intervene in the case, Judge Walker's decision could be upheld on procedural grounds.

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Schwarzenegger and Brown's decision not to defend Proposition 8 has precedents. 

In the 1960s, California Attorney General Thomas Lynch did not defend Proposition 14, a 1964 initiative which amended the state constitution to rescind fair housing laws and to prevent the state legislature from ever passing laws barring racial discrimination in housing. In 1967, the United States Supreme Court invalidated Proposition 14 as a violation of the equal protection guarantee of the federal constitution.

In the 1990s, Governor Gray Davis did not pursue the state's defense of Proposition 187, a 1994 initiative that would have required state workers to deny help to anyone they suspected of being an undocumented immigrant. The law never went into effect because the state did not defend the proposition after federal and state judges issued injunctions preventing its implementation.



State appellate court refuses to a grant conservative legal organization's petition to force state leaders to defend the same-sex marriage ban in court.

Gay Couples Sue for Equal Insurance Coverage

April 14, 2010

Objecting to a federal law that bars California from allowing the same-sex spouses of state employees to enroll in the state's long-term health insurance program, the Legal Aid Society-Employment Law Center filed a class action lawsuit against CalPERS and the Internal Revenue Service, on behalf of gay state employees and their spouses.

More than 165,000 state employees participate in the popular health care plan which allows members to enroll their parents in-laws, siblings, and opposite-sex spouses. Same-sex spouses cannot apply.

The three couples who are plaintiffs in the case were legally married between June 2008, when a state supreme court decision allowing same-sex marriage went into effect, and November 2008, when Proposition 8 passed and closed the door on gay marriages in California. Despite the passage of Proposition 8, which only applies to marraige, the California Supreme Court's 2008 ruling stated that gay people must be granted equal rights. 

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In a related story, on April 11 a national campaign to secure equal Social Security benefits for same-sex couples kicked-off at the Los Angeles Gay and Lesbian Center. Currently, a surviving spouse in a same-sex relationship cannot receive Social Security survivor benefits because the federal govenment does not recognize same-sex relationships. At the kick-off rally, Representatives Loretta Sanchez (D-Lakewood) and Judy Chu (D-El Monte) announced that they would sponsor legislation to equalize Social Security survivor benefits for gay couples.

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Three gay couples sue California's public pension fund and the IRS to challenge the exclusion of same-sex spouses from long-term health coverage available to hetereosexual spouses and other family members of state workers.

Judge Orders Equal Treatment for Gay Employee

November 20, 2009

The chief judge of the federal appeals court in San Francisco ordered the Obama administration to allow a lesbian employee of the court to enroll her wife in a family health insurance plan. Chief Judge Alex Kozinski also ordered the federal Office of Personnel Management to reimburse Karen Golinski, a staff attorney with the court for 17 years, for insurance coverage that she has paid for independently since she applied for the federal coverage in September 2008. 

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The day before Judge Kozinski's order, another judge ordered the government to pay a federal public defender in Los Angeles for the cost of buying insurance for his husband because the federal government will not provide spousal benefits for the gay couple.

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The Office of Personnel Management cited the federal "Defense of Marriage Act" as the reason for denying same-sex couples benefits allowed to heterosexual couples. The Obama administration has criticized the Act, but Attorney General Eric Holder has said that his office must defend the Act as long as it is law. 

A judge ordered the federal government to stop resisting his order to provide a lesbian court employee the same family health coverage as other employees.

Dismissal of Lesbian and Gay Military Personnel

Nearly twenty years before the federal government's "Don't Ask, Don't Tell" policy, a brave woman challenged her discharge from the navy, which was based solely on her sexual orientation.


City Lights Reading

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November 11, 2009

Listen to a podcast from historic City Lights Bookstore in San Francisco, where Elaine Elinson and Stan Yogi read from Wherever There's a Fight.


Proposition 8 Declared Unconstitutional

February 7, 2012

In a historic decision, the Ninth Circuit Court of Appeals upheld a lower court judgment and ruled 2-1 that Proposition 8, the 2008 voter initiative prohibiting same-sex marriages, violates the federal constitution's guarantee of equal protection under the law.

The decision did not define a Constitutional right for same-sex couples to marry, but rather focused on the disparate treatment of gay couples. The opinion, written by Judge Stephen Reinhardt, stated that there was no legitimate reason to treat same-sex couples differently.

The 89-page majority opinion rejected as unsubstantiated the major arguments offered by proponents of Proposition 8--that banning same-sex marriages encourages and protects heterosexual marriages and protects children.

"Proposition 8 serves no purpose, and has no effect, other than to lessen the status and human dignity of gay men and lesbians in California," Reinhardt wrote. 

The ruling applies only to California. As such, legal observers believe it is less likely for the United States Supreme Court to take the case on appeal, or if it does, to issue a sweeping ruling.

The ban on same-sex marriages in California remains in effect while the Ninth Circuit's ruling is appealed.

Court of Appeals rules that the ballot initiative barring same-sex marriages violates equal protection rights.

Appeals Court Hears Proposition 8 Arguments

December 7, 2010

On December 6, a three-judge panel of the Ninth Circuit Court of Appeals heard arguments in a challenge to the August ruling of Chief U.S. District Judge Vaughn Walker, who ruled that Proposition 8 violates the federal constitution.

During the 2 1/2 hour hearing, which was televised nationally on C-SPAN, the judges asked questions and heard arguments regarding two major issues:  (1) the procedural question of whether proponents of Proposition 8 have the legal right or "standing" to appeal Judge Walker's ruling, and  (2) the fundamental question of whether Proposition 8 is unconstitutional.

The panel's most conservative member, Judge N. Randy Smith, and its most liberal, Judge Stephen Reinhardt, seemed concerned that Governor Schwarzenegger and Attorney General Brown refused to defend the initiative.  Judge Reinhardt said that the panel could ask the state supreme court for an opinion on whether state law allows an initiative's proponents to defend a measure in court if state officials refuse to do so.

On the substantive question of whether Proposition 8 is unconstitutional, the panel of judges suggested that they may not issue a broad ruling addressing that question but would instead hand down a limited decision.

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Ninth Circuit Court of Appeals judges explore routes to a narrow ruling in litigation challenging the same-sex marriage ban.
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