"8" , The Rob Reiner Play about the Prop 8 Trial

In case you missed the broadcast, here it is in its entirety, starring George Clooney, Martin Sheen, Jamie Lee Curtis, Bradd Pitt, Matthew Morrisson, Kevin Bacon, Jane Lynch, John C. Reilly, and Chris Colfer




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Prop 8 Play to be Live-Streamed on Saturday, Mar 3

[UPDATE: The Actual Play, in its entirety, is posted HERE]

The Proponents of California's "Prop 8" have spent months attempting to keep the trial record hidden from public view. Insiders who were at the trial are near unanimous in reporting that the anti-equality case was embarrassing it was so poorly made. (Last month's decision of the 9th Circuit, affirming Judge Walker's original decision declaring Prop 8 unconstituional, can be found here.)

Now, to bring the proceedings to light (while the official record remains sealed), Rob Reiner has announced a history-making live streaming of a reading of the play "8," Dustin Lance Black's play about the Prop 8 trial. It will be broadcast at The American Foundation for Equal Rights and You Tube n Saturday, March 3rd, 2012, at 7:30pm Pacific (10:30pm Eastern).

The play is full of heavy-hitters, starring George Cloony, Kevin Bacon, Bradd Pitt, Jamie Lee Curtis, Martin Sheen, Jane Lynch, Matthew Morrisson, Chris Colfer, and Jesse Tyler Ferguson.

Two promo reels are included below:





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9th Circuit Overturns Prop 8. Ruling, History, and Next Steps

The 9th Circuit Federal Appellate Court has just ruled in a 2-1 decision that Proposition 8, the California initiative that ended Marriage Equality in California, is Unconstitutional under the 14th Amendment of the US Constitution, which guarentees citizens the equal protection of the law. The three-Judge panel consisted of Stephen Reinhardt, an appointee of President Carter; Michael Daly Hawkins, an appointee of President Clinton; and N. Randy Smith, appointed by President George W. Bush.

From today's ruling:

"Proposition 8 serves no purpose, and has no effect, other than to lessen the status and human dignity of gays and lesbians in California, and to officially reclassify their relationships and familes as inferior to those of opposite-sex couples. The Constitution simply does not allow for laws of this sort."

In making this ruling, the Court (which has federal jurisdiction over Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, Washington State, and the territories of Guam and the Northern Mariana Islands) made two other rulings: it held that the lower federal district court Judge, Judge Vaughn Walker, who initially found Prop 8 Unconstitutional, did not have to disqualify himself from the case simply because he himself is gay; and it affirmed the right of a conservative citizen's group to defend Prop 8 in Court. This ruling represents the first time that an Appellate federal Court has held that discrimination against gays and lesbians seeking to marry violates the US Constitution, and accelerates the likelihood that the entire US Supreme Court will hear the issue in the next term.

This Blog has followed the Prop 8 case closely because of its national significance. Here is a "plain language" timeline of the events leading up today's ruling:

May 15, 2008: The California Supreme Court rules 4-3 in In re Marriage Cases (2008) 43 Cal.4th 757 [76 Cal.Rptr.3d 683, 183 P.3d 384
that Marriage is a fundamental right, and California's statutes prohibiting same-sex marriage were therefore Unconstitutional under the State Constitution. Same-sex Marriages began in California shortly theafter.

Nov 4, 2008: California citizens, through a popular referendum vote of 52%-48%, adopted a Constitutional Amendment to prohibit same-sex marriage. The ballot question was known as Proposition 8 ("Prop 8" for short).

May 26, 2009:Supporters of same-sex marriage bring suit in State Court, challenging the process by which Prop 8 was adopted. The State Court rules, 6-1, that the process was valid, and Prop 8 was a valid amendment to the State Constitution.
(see Blog post )

Aug 4, 2010 – In a move initially seen as controversial by some gay rights activists, supporters of same sex Marriage then chose to sue in Federal District Court, claiming that Prop 8 violated the Federal Constitution. Federal District Court Judge Walker agreed, and overturned Prop 8. (See details at
Blog Post Walker's order declaring Prop 8 Unconstitutional was then stayed ("put on hold") pending appeal to a higher level (the 9th ircuit Appellate Court).

Nov 17, 2011 – Governor Schwarzneggar refused to appeal the ruling on behalf of "The State," enraging conservative activists who sought standing to challenge Walker's ruling on appeal. The Federal Appellate Court was asked to overturn Walker's ruling by conservatives, but that court first had to decide whether the conservatives even had "standing" (or "the right") to sue in the first place, since the Governor and Attorney General of California would normally be the parties involved in defending the law. The Federal Court chose to ask the California State Court whether a citizens group had the right to sue under State law. The state court ruled that indeed, the conservative citizen group had the right to sue, (see Blog Post .)

With that as background, the 9th Circuit Appellate Court had to decide the following questions before it:

(1) Did the conservative citizen's group also have the right to sue in federal court?
(2) Did Walker have to disqualify himself?
(3) Was Walker's ruling overturning Prop 8 correct as a matter of Law.

The Last point is particularly important. In legal cases, *only* the Trial Court (the lowest court) hears and determines issues of *fact.* That means that evidence concerning the effect of discrimination on gays, the history and purposes of marriages, and psychological and medical facts surrounding homosexuality was all entered into the record and decided in Walker's Courtrom. It can not be questioned on appeal. It has been widely acknowledged by people on all sides that the conservatives arguements were extremely poor and not well supported by evidence; several of their witnesses even backed out of testifying at the last minute.

This is critically important for the next steps.

Chances are, this ruling today will be stayed ("put on hold") pending another appeal by conservatives to one of two bodies:

They can appeal to the FULL 9th Circuit. The current decision was issued by a panel of three justices from the 9th circuit, which is standard procedure. The conservatives can request that a "full bench" hear the case(called a hearing "en banc"), which would involve 11 of the 9th circuit's 28 justices.

Or, they could appeal directly to the U.S. Supreme Court. Many observers are skeptical that the US Supreme Court would take the case however, because the 9th Citcuit wrote their decision very narrowly: they decided that the California law, in light of the process followed in California, violated the US Constitution; they did not rule that prohibitions against same-sex marriage "in general" violated the U S Constitution.

According to Shannon Minter, legal counsel for the National Center for Lesbian Rights:

"Given the reasoning of the Ninth Circuit's decision and its focus on the specific circumstances that led to the enactment of Prop 8 in California, it may be a tall order for the supporters of Prop 8 to persuade the Supreme Court to take the case. The Supreme Court normally only accepts cases when different federal appellate courts have reached opposite conclusions on the same legal issues, or where a decision has broad national implications. The Ninth Circuit's California-focused decision presents neither of those circumstances. Unless the Supreme Court breaks with its own tradition and intervenes in the case, it's possible that wedding bells will be ringing in California again before the end of the year."

In any event, the issue of same-sex marriage as a federal Constitutional right is not yet established...but it is one step closer.

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Proposition 8 Overturned: Supreme Court Battle Looms

At 4:50 pm EST this afternoon, Federal District Court Judge Vaughan R. Walker (District of Northern California)overturned California's Proposition 8, setting the stage for an eventual national showdown at the US Supreme Court.

California courts had earlier required Marriage Equality, and couples began to marry under the decision, but opponents gathered enough signatures to force a referendum on the issue popularly known as "Proposition 8." (Law-making by 'popular vote' is a traditional lawmaking route in the west of the United States, but is little used elsewhere. During the last generation, then-Governor Ronald Reagan opposed a ballot initiative supported by singer Anita Bryant that would have baned gays from teaching. The campaign propelled San Francisco mayor Harvey Milk into the national limelight as he pleaded with GLBT men and women to leave the closets and be counted among their neighbors and families. That ballot initiative ultimately failed.)

But this time, after more than 80 million dollars were spent campaigning, proponents of Prop 8 won by a vote of 52-48%, and Marriage Equality immediately ceased in California 5 months after it started. Two attorneys, David Boies and Theodore Olson(one a liberal Democrat and one a conservative Republican) then brought this suit on behalf of two gay couples and challenged the referendum vote in Federal Court on the basis of the 14th Amendment to the U. S Constitution, which requires the Equal Protection of Laws for all citizens in a case more properly known as Perry et al v. Schwarzneggar. Same-sex marriage had never been challenged on these Constitutional grounds before, and many gay-rights groups expressed everything from delight to nervousness to outright hostility at pursuing this avenue of attack.

During the trial, opponents of gay marriage saw their case fall apart, as 'expert' witnesses failed to show up or to provide evidence of their 'expertise,' while Boies and Olson brought in a parade of experts in marriage, family law, and psychology to show the discriminatory nature of Prop 8 and the campaign that surrounded it.

In the end, Judge Walker wrote:

"Plaintiffs challenge Proposition 8 under the Due Process and Equal Protection Clauses of the Fourteenth Amendment...Each challenge is independently meritorious, as Proposition 8 both unconstitutionally burdens the exercise of the fundamental right to marry and creates an irrational classification on the basis of sexual orientation...Plaintiffs seek to have the state recognize their committed relationships, and plaintiffs’ relationships are consistent with the core of the history, tradition and practice of marriage in the United States.“


This means that there are now TWO Federal Court rulings citing three different Constitutional provisions chipping away at systematic discrimination against gays and lesbians: This Prop 8 ruling, which places sexual orientation under both the equal protection and Due Process clauses of the 14th amendment, and Judge Tauro's decision in Massachusetts last month, which held that the so-called federal "Defense of Marriage Act" ("DOMA"), which prohibits the federal government from acknowledging the validity of same-sex marriages performed in the states where it is legal, was also unconstitutional under the 10th Amendment guaranteeing State's Rights in family issues.

There is little doubt that both of the California and Massachusetts decisions are headed to Appellate Circuit Courts, and eventually to the Supreme Court, where a decision of national import is likely to rest on the shoulders of the Courts only centrist, Justice Kennedy.

DOMA, Prop 8 and Appeals: Outcomes and Next Steps

Yesterday's holding by a Federal District Court Judge that DOMA is Unconstitutional is a big step...but not the end. This was a decision issued by a federal judge on a federal law, but only in a "local" (Massachusetts) case. The question remains of how we turn a Federal District Court holding into a national holding. It would be very unusual for the entire federal government to just roll over and say, "OK, we gotta change now, Congress was wrong on this" as a result of a single District Court holding.

In the best of all worlds, the decision would need to be appealed to (and affirmed by) the Appellate level (and maybe moved on certiorari to the Supreme Court) strictly on the 10th Amendement aspect of the holding, to create a national holding. The 10th Amendment specifically grants to the States the right to legislate in those areas not given Federal jurisdiction, and this was the legal basis for yesterday's decision: States, not the Federal Government, are the entities with authority to define Marriage. DOMA attempted to allow the Federal Government to ignore State Marriage laws that recognize same-sex unions.

Meanwhile, on the West Coast, another decision looms. California's Proposition 8 overturned same-sex marriage in that state, and the Proposition has been challenged on other federal grounds: this one, however, is not based on "State's Rights," but on the Equal Protection Clause of the 14th Amendment to the US Constitution. The specific holding of that trial - which could be released any day - may very well provide a second Federal ruling requiring clarification or appeal...which could accelerate the process.

I expect that, if appealed, the two cases would be joined at the Supreme Court.

Back to yesterday's DOMA ruling: This puts Obama in a very difficult position. On one hand, he could decide to support the Massachusetts District Court decision nationwide; this would be highly unusual, maybe even unprecedented. District Court level Judges issue rulings all the time, often contradictory with each other and almost never with national application overnight.

On the other hand, Obama's Justice Department could Appeal the Massachusetts ruling, thus angering the less-than-critically-thinking gay blogosphere that understands that it *won* at the District Court level.

Whatever Obama decides to do, he must articulate his reasoning WELL both publicly and "within" party and GLBT leadership so its clear what is going on.