PHOTO OF THE DAY: Camping out to hear the Supreme Court hear Prop 8 and DOMA on Tuesday and Wednesday has begun.
BY SAM GREISMAN
A look back at today's top stories
As we enter the final countdown to the Supreme Court arguments in the Prop 8 and DOMA cases, Ari Waldman previews the issue of "standing" in the Prop 8 case. SCOTUSBlog founder Tom Goldstein also gives everyone a heads-up about what to look out for next week.
Also heterosexual and gay parents alike would be proud of the poise and precociousness of 12-year-old Matthew Lannon who spoke out on behalf of his two moms at last night's marriage equality hearing in Rhode Island.
A pro wrestler who goes by "Bully Ray" apologized yesterday after he was recently caught on video throwing gay slurs at a fan. It turns out that the deposed anti-gay Scottish Cardinal who stepped down after being accused of getting it on with other priests was having a long term affair with one of his accusers. And I don't know if this qualifies as "wingnuttery" but I think we can all agree that Google founder Sergey Brin's belief that smartphones are effeminate seems a little wacky.
VIDEOS OF THE DAY
Good luck not being moved by this powerful anti-hate ad that imagines what Harvey Milk, Matthew Shepard and other well known victims of hate would be like if they were alive today. And those interviews with underwear models continue with Long Islander Phillip Fusco.
Kentucky Governor Vetoes Bill That Would Have Protected Right to Discriminate Against Gays Based on Religious Beliefs
Kentucky Governor Steve Beshear has vetoed House Bill 279 , by which a "religious individual could claim an exemption from any law or policy that prohibits discrimination" according to the ACLU, "leaving racial minorities, women, LGBT people and others without adequate protections."
From the Governor's website:
“Religious freedom is a cornerstone of this great nation, and a right enshrined in both the United States Constitution and the Kentucky Constitution,” said Gov. Beshear. “I value and cherish our rights to religious freedom and I appreciate the good intentions of House Bill 279 and the members of the General Assembly who supported this bill to protect our constitutional rights to practice our religion. However, I have significant concerns that this bill will cause serious unintentional consequences that could threaten public safety, health care, and individuals’ civil rights. As written, the bill will undoubtedly lead to costly litigation. I have heard from many organizations and government entities that share those same concerns. Therefore, after giving this measure thoughtful analysis and consideration, today I vetoed the bill.”
HB279, sent to the Governor on March 11, would allow an individual to disregard any state or local law that places a substantial burden on his or her sincerely held religious belief. As written, the government would have to show by “clear and convincing evidence” that the state has a compelling interest in requiring the person to follow the established law, and that there is no less restrictive means to accomplish the government’s objective.
The ACLU earlier this month had expressed concern that the bill might be used to undermine existing LGBT Fairness protections for individuals covered by local statutes in Louisville, Lexington, Covington and Vicco, Kentucky.
In the first episode of the web series 'The 3 Bits' gay friends were negotiate an orgy. In the second episode we see what comes of that. The series is written and directed by Max Freeman and Margaret Singer.
Watch, AFTER THE JUMP...
Catch the first episode HERE.
THE WATER CRISIS: Matt Damon continues his toilet crusade.
HAWAII: Trampoline cliff jumping.
JIMMY KIMMEL: This week in unnecessary censorship.
SHOE JIVE FOR SHOE DRIVE: "I laid out a dance floor, pushed play on my 80's jams mix and turned on a camera. The love random strangers showed to support GB4SHOES Drive, a local shoe drive that is donating all its shoes to Housing Works,a healing community of people living with and affected by HIV/AIDS here on the East Coast."
For recent Guides to the Tube, click HERE.
Sunday at 7: candelight vigil in Times Square for marriage equality.
Even FOX News' poll has marriage equality winning across the nation.
Boehner on DOMA defense: “In our system of government, the administration doesn’t get to decide what’s constitutional. The Supreme Court does. Our financing the lawsuit was to make sure that the proper forum was used to make sure that we know what’s constitutional and what isn’t.”
David Beckham rocks some super-tight trousers.
Transgender teacher kills herself after being mocked in Daily Mail article: "Lucy Meadows was a teacher. Born male, Lucy transitioned to female later in life, a process that was supported by her employers. Writing at the Daily Mail—one of Britain's largest-circulation newspapers—Richard Littlejohn publicly denounced her in terms usually reserved for child abusers. Not long afterward, Meadows killed herself."
Joe Jonas denies existence of sex tape.
Unity Ticket LOLs: "It's one of the great untold stories of the 2012 presidential campaign, a tale of ego and intrigue that nearly upended the Republican primary contest and might even have produced a different nominee: As Mitt Romney struggled in the weeks leading up to the Michigan primary, Newt Gingrich and Rick Santorum nearly agreed to form a joint "Unity Ticket" to consolidate conservative support and topple Romney."
Fundraiser for trans activist Kate Bornstein, who has been diagnosed with cancer.
Mississippi lesbian high school student bullied by teacher: "The teacher had divided the class into 2 teams -- boys versus girls -- for a trivia game, Holmes said, but she called on the tomboy-looking teen to sit alone in the middle."
Dan Choi trial to resume March 28: "The trial, which began in August 2011, has been on hold for more than a year over procedural disputes. The prosecutor initiated a highly unusual procedure known as a Writ of Mandamus that successfully overturned a ruling by the judge allowing Choi’s attorneys to argue that Choi was targeted for 'selective' and 'vindictive' prosecution."
Now Norman Reedus is hanging out with puppies.
Milo Ventimiglia gets bitten.
New Edition's Johnny Gill is "150,000 percent heterosexual". "In some strange way, it was kinda like some kinda lesson that was learned. I mean, we used to all sit around laughing and making gay jokes. As I got older and realized it was like hey, that's not cool."
Colorado civil unions officially take effect May 1.
Neil Patrick Harris at the L.A. Gay and Lesbian Center Icon Awards...
Former Blue boybander Duncan James talks about sexuality: "I wanted to still be kind of known as 'Duncan James from Blue, the heartthrob'. The ladies' man. If anybody ever used to say anything about me - 'I think he's gay' - I would get this panic inside me."
GOP chair Reince Priebus tries to appeal to gay voters by bragging about his "great marriage".
Is Pope Francis secretly pro-gay? "Why, then, did Bergoglio rail against gays in such a bigoted way after he was unsuccessful in getting support for civil unions? Because one doesn't become pope by doing otherwise. The country was about to pass the marriage equality bill, and Bergoglio was publicly showing the Vatican and the world that he'd go to the mat, organizing marches and railing against gays."
On Tuesday and Wednesday of next week, the Supreme Court will hear more than 3 hours of arguments in the challenges to the constitutionality of California's Proposition 8 (Hollingsworth v. Perry) and the Defense of Marriage Act (Windsor v. United States). In a series of short posts, I will preview and summarize the legal issues that will be raised. Today, standing in the Prop 8 case.
Standing is the first question the lawyers will argue and the first question the Court will answer. It has to be first because standing is what lawyers call a "jurisdictional" question: if a party doesn't have standing, it doesn't have the right to bring the case in the first place, so the court can't address the rest of the case.
So, what determines if a party has standing? Veterans of law school classes like Civil Procedure and Federal Courts will know that federal standing requires some type of "personal" or "direct injury." In other words, to bring a lawsuit to a district court, you have to be directly affected by the underlying incident giving rise to the case or, in the case of standing to appeal, you have to be directly (and adversely) affected by the lower court decision.
In the Prop 8 case, the standing question concerns the standing to appeal.
CONTINUED, AFTER THE JUMP...
If you remember, when Hollingsworth got started, the law was initially defended by the state government. But, after Judge Vaughn Walker declared that bans on the freedom to marry violate equal protection and due process, neither then-Governor Schwarzenegger nor his successor, Governor Jerry Brown, had any desire to challenge that ruling. After the court thwarted a conservative California county's attempt to become party of the case after the fact, the only party left to defend Prop 8 was the group that wrote it: ProtectMarriage and ProtectMarriage.com. However, ProtectMarriage is just a small group of ordinary Californians who have no direct skin in the game other than the fact that they wrote and advocated for the law. The State of California is the party with a "direct injury": if Prop 8 dies, it has to change it's behavior and start issuing marriage licenses to gay couples. So, if California is the one "injured," how could a small group of people with no connection to the California government have standing?
We spent most of 2011 waiting for the California Supreme Court, the highest court in the state and, therefore, the final arbiter on state law, to answer this conundrum for the Ninth Circuit: Does state law give initiative proponents standing to defend their proposal when the State declines to do so?
The California Supreme Court said yes, arguing that the power to "propose and enact" has no meaning without the power to "defend." And, because California has a liberal and expansive initiative proposal process, any other ruling would do violence to long-standing public policy of the state.
The Ninth Circuit pretty much accepted the California Supreme Court's ruling, arguing that ProtectMarriage did not, itself, have to show any direct injury: State law gave ProtectMarriage the power to step into the shoes of the State, piggy-backing on California's standing. All that was needed, then, for federal standing to appeal was California's standing -- which was undisputed -- and state law that allowed initiative proponents to assume the state's role when the state government declined to defend its own laws.
This will be the first question the justices will address on Tuesday. And, they will start from the beginning. They don't have to agree with the Ninth Circuit. Nor do they have to even agree that the Ninth Circuit went about answering the question the correct way. The Court could say, along the lines of some discussion in a recent Supreme Court case called Arizonans for Official English v. Arizona, that regardless of what state law says, initiative proponents still have to show their own "direct injury." Notably, an amicus brief submitted by two former Republican Attorneys-General, John Ashcroft and Edwin Meese, argues that the Court could even ask the California Supreme Court about whether ProtectMarriage experienced "direct injury."
That makes no sense. "Direct injury" is a question of federal law, and state courts have no role in answering purely federal questions. What's more, Arizonans suggests (though never explicitly decided) that the Ninth Circuit was wrong that initiative proponents need not demonstrate their own "direct injury." And, we cannot forget the political factors at play. Many experts think that the Court may use the jurisdictional question of standing to punt or narrow the scope of Hollingsworth. The Court may not be ready to decide the marriage question for the entire nation, or even for a small handful of states. Finding that ProtectMarriage lacked standing to appeal would erase the Ninth Circuit's opinion and leave Judge Walker's decision in tact and, thus, applicable only to the State of California. This would still be a victory for the freedom to marry because thousands of gay men and women in California could finally marry, ending their post-2008 nightmare.
But, the Court could just as easily agree with the Ninth Circuit or find federal standing on its own theory. If it does, the next step would be to address the merits of the case, which raises questions of the appropriate level of scrutiny, the justifications for Prop 8, and the reach of the Court's analysis. Stay tuned for a summary of these questions.
Ari Ezra Waldman teaches at Brooklyn Law School and is concurrently getting his PhD at Columbia University in New York City. He is a 2002 graduate of Harvard College and a 2005 graduate of Harvard Law School. His research focuses on technology, privacy, speech, and gay rights. Ari will be writing weekly posts on law and various LGBT issues. You can follow him on Twitter at @ariezrawaldman.