Motions to marry: Prop 8’s last stand at the Ninth Circuit

Thom and Jeff speak at Prop 8 rally in San Francisco (Photo: Julie Bernstein)

On Thursday the Ninth Circuit Court of Appeals in San Francisco heard the final hearings of this stage of the Prop 8 case, a motion to release video of the original District Court trial and another motion to vacate that court’s decision because Judge Vaughn Walker was gay and in a long-term relationship.

Just before the hearings there was a rally outside the courthouse, where Thom and I spoke along with several other marriage equality advocates we’ve come to know over the last few years.

Here’s a loose recollection of what I said (based on my talking points I had scribbled on Post-It notes):

Hello, my name is Jeff Tabaco, and this is my partner, Thom Watson. We have been together for over eight years. We became domestic partners in 2009 and had a commitment ceremony later that year. What I want more than anything in the world is to marry this man.

But I can’t. Not here in San Francisco, in the city I was born. Not in my own home state of California. I am a proud Californian, a proud American. But I will be a prouder Californian, a prouder American — a more equal American — when the judgment striking down Prop 8 is upheld, when our rights are restored, and when I can marry the person I love.

Gay rights are human rights, and human rights are gay rights.” That’s what we’re fighting for, what everyone — gay, straight, and in between — should be fighting for: dignity and equal rights for all.

We are on the side of love. We are on the side of the law. And we are on the right side of history.

I’m happy to see a lot of familiar faces here today, and the joke is that we have to stop meeting like this. We’ll come to as many rallies and hearings as we have to to get our rights back. I know the next time we gather like this, it will be to celebrate a ruling upholding marriage equality for all.

Any day now the Ninth Circuit could rule on any or all of the issues before it (standing of the Proponents, these motions to release the video and to vacate the decision, and the underlying constitutional merits), but the word seems to be it could be as soon as later this month or early next year. The commentaries I’ve read also suggest that the court will deny the motion to vacate, but may find it difficult to grant the motion to release the trial video. We shall wait and see.

See also:

  • The photo above is by our friend, wedding photographer, and continuing documentarian of the marriage equality cause, Julie Bernstein. For more, see her “Motions to Marry” rally photos.
  • Videos of the Ninth Circuit hearings have been published: Hearing 1 (motion to release trial video) and Hearing 2 (motion to vacate).

Rally on Prop 8 standing

A couple of weeks ago we took part in a rally and attended a court hearing about the latest detour in the Prop 8 saga: whether the proponents’ have standing to appeal the case when the official state defendants (the governor and the attorney general) refuse to do so. My opinion is that they do not, but in any case the outcome of this particular hearing at the California Supreme Court (due in under ninety days now) is only meant to advise the Ninth Circuit as it ponders whether the proponents have federal standing.

Anyway, we watch and wait. But I did want to share some of the sights and sounds from the rally that morning, courtesy of our good friends.

Check out Julie Bernstein’s site for her full set of rally photos.

Here is a video by Sean Chapin, showing the contrast between the anti- and pro-equality sides:

You really see what our side stands for: love.


Prop 8 hearing: Gay judge’s ruling on same-sex marriage is upheld

Yesterday morning Thom and I went to a San Francisco federal courthouse to watch a hearing held to decide on a couple of motions brought up by the Prop 8 proponents: to vacate Judge Walker’s judgment overturning Prop 8 because he is gay and in a same-sex relationship (the argument being that he could have benefited from the case’s outcome), and to compel return of the trial recordings. The good news is that today both of these motions, as we expected, were denied.

From Judge Ware’s ruling on the motion to vacate (Section 455 of the U.S. Code [28 U.S.C. §455] addresses disqualification of federal judges):

The Court finds that neither recusal nor disqualification was required based on the asserted grounds. The sole fact that a federal judge shares the same circumstances or personal characteristics with other members of the general public, and that the judge could be affected by the outcome of a proceeding in the same way that other members of the general public would be affected, is not a basis for either recusal or disqualification under Section 455(b)(4). Further, under Section 455(a), it is not reasonable to presume that a judge is incapable of making an impartial decision about the constitutionality of a law, solely because, as a citizen, the judge could be affected by the proceedings. Accordingly, the Motion to Vacate Judgment on the sole ground of Judge Walker’s same-sex relationship is DENIED.

It’s a good read (full PDF here). Justice — not prejudice — prevails. Thank you, Judge Ware, for putting the smackdown on this absurd, frivolous motion by the Prop 8 proponents, who should be ashamed and embarrassed.

Bright and early before the hearing, outside the courthouse Thom and I participated in a rally organized by Marriage Equality USA to show our support for the cause. Among the speakers was Thom, who told our story as domestic partners who are waiting for and fighting for the right to marry.

Thom speaks at rally

Speaking with reporter Scott Shafer of KQED:

Speaking to reporter

These photos are by Julie Bernstein, and you can find her entire set of photos covering the rally here. And check out Sean Chapin’s video montage:

Thanks to all who showed up and to everyone for their support. We’ll keep showing up and fighting as long as we have to!


Prop 8 rally and appeal

Last week Thom and I spoke to a crowd of fellow marriage-equality supporters at a gathering before the federal Prop 8 appeal in San Francisco. As you may recall, Prop 8, which took away the right to same-sex marriage in California, was overturned but that decision was appealed by the ban’s proponents. Last Monday the burden was theirs to show that they had standing to bring the appeal and to argue the constitutionality of Prop 8.

The rally beforehand drew a large, energetic crowd outside the courthouse, and I thank our friends at Marriage Equality USA, especially Molly McKay, Stuart Gaffney, and John Lewis for reaching out to us and helping us become “love warriors” in the fight for equal rights. Here are the remarks we made that morning:

THOM: Good morning. I’m Thom Watson. I grew up in the 60s and 70s in a rural conservative Virginia town. As a child I dreamed of marrying and having a family. But as a gay man I was told that this would never happen, that I was not entitled to that dream.

When I was 17, the D.A.R. named me their statewide “Good Citizen” awardee. But as a gay man I was told that I was not a good citizen of Virginia, not an equal citizen, and never would be.

Jeff and I met in 2003. After sharing a life and home for three years, to the state of Virginia we were still legally strangers. In my childhood Virginia had gone to the Supreme Court to try to keep interracial marriage illegal. In 2006 it was about to pass one of the most restrictive anti-gay amendments, banning marriage as well as any other legal recognition of our relationships and calling into question even wills and powers of attorney. The writing on the wall was clear, so we moved here, to Jeff’s home state.

We came here in large part because California was the promised land where we were to find the equality others take for granted. I took a job with the state, and swore to defend the state constitution. But Prop 8 amended that constitution to take my rights away and make me a second-class citizen here. After its passage, I felt the same way I imagine gay and lesbian soldiers might, as they fight to safeguard a nation from whose guarantees of equal protection they are unconstitutionally excluded by Prop 8, DOMA, and ENDA.

I still have that childhood dream of marrying the one I love. He’s standing right here beside me. And now I believe that dream can come true, as Prop 8 finally falls for good.

JEFF: Good morning! My name is Jeff Tabaco, and I am proud to be here with my partner Thom and with all of you to restore equal marriage rights in California. If you had told me ten or twenty years ago that the tide would soon turn to recognize marriage rights for LGBT people, and that I could play some small part in it, I probably wouldn’t have dared to dream it. But to touch on a related theme in the LGBT community that hopefully we have all heard by now and we continue to spread: it gets better. It gets better because — you, me, our families, our friends, our allies — we all make it better.

As the son of immigrants, I grew up very aware of the search for a better life. My parents left the Philippines knowing there would be difficult changes ahead, but that their lives could change for the better. My mother’s favorite saying is, “As I breathe, I hope.” So as long as we are here, we keep fighting. We keep living our lives. And for my life, for our lives, the fight for equal rights is crucial to realizing the full potential of our true selves, openly and honestly.

I am a proud Californian. But I will be more proud of this great state when I can marry the person I love, when once again all are treated equally under the law, and when the shame and discrimination of Prop 8 are finally put to rest! Thank you!

We were just two of many speakers that morning — including Jesse Jackson via cell phone — all of whom had a very personal connection to civil rights. After the rally we went into the courthouse to watch the two-hour hearing, which was broadcast to an overflow courtroom. It was exciting to watch, and I remain optimistic that Judge Walker’s original ruling reinstating equal marriage rights will be upheld. But for now we wait. Again.

Note: Many thanks go to Julie Bernstein for her continuous support and her photographic skills. The photos above are by her; check out her photo gallery of the rally.


The Prop 8 wait

Same-sex marriage is in a holding pattern in California. Proposition 8, the gay-marriage ban, got overturned in federal district court (yay), but the judgment was temporarily stayed (boo). Then the stay was lifted (yay), but the effect of that was delayed a week (boo). Then the proponents appealed to the circuit court and were granted a stay (boo), but the court expedited the case to begin this December (yay). And then there’s also the mysterious cloud hanging over all of this: whether the proponents even have standing to appeal. Whew!

The entire Prop 8 trajectory has been a roller coaster of events, and August 12 was an emotional roller coaster of a day. We went to San Francisco City Hall in the morning to await word on the stay and see if we could get married. Our good friend Julie Bernstein, who had also been our wedding photographer last year, surprised us by meeting us at City Hall to offer emotional support and document what we hoped would be our legal-wedding day. To finish the job, as it were.

After waiting for a few hours in line with other gay and lesbian couples at the county clerk’s office, we were overjoyed to find out the stay was lifted, but then just minutes later disappointed to hear of the delay. Same sex-marriage may be on hold for now, but given the current momentum, we are optimistic for marriage equality and know that we will get there eventually. Julie created a lovely photo essay of that day last week; please take a look: “A Second Chance for Their Wedding Day.”

Thanks to our friends and family for their support and encouragement! And on a grander scale, thanks to the plaintiffs and their legal team for their efforts, and to Judge Vaughn Walker for his legal reasoning. The overturning of Prop 8 is a win for the Constitution and for civil rights.

» See also Thom’s blog entry “‘Not Getting Married Today.'”


Marriage equality in Iowa

Yesterday when I saw a tweet about the Supreme Court getting ready to rule on same-sex marriage, I thought it was talking about California and I was like, already?! Well, it’s Iowa, and they say yes! The Iowa Supreme Court unanimously upheld a county judge’s ruling that the state law banning gay marriage was unconstitutional. Gay couples can apply for marriage licenses in Iowa beginning April 27. (Links: Des Moines Register coverage; Iowa Supreme Court opinion [summary, full].)

[Correction: I previously wrote April 24, but that happens to be a designated furlough day for the court system in Iowa, so the first day for license applications will be the next business day, Monday, April 27.]


In California we’re still waiting for our Supreme Court to decide on the challenge to Prop 8. It has ninety days from oral arguments (held March 5) to issue its decision, which means the deadline is now about sixty days out. I’m still hoping they do the right thing and restore marriage equality in our state.

(Photo: When Thom and I drove across the country to move out West in 2006, we hardly stopped in Iowa if at all. This is a photo I took of a welcome sign on the freeway past the state line. Who would’ve known that it would soon be a Midwestern beacon of equality?)


Marriage déjà vu

Yesterday morning the California Supreme Court heard oral arguments in the case challenging Prop 8, the voter initiative that amended the constitution to eliminate same-sex marriage rights in the state. Thom and I went to Civic Center in San Francisco to watch the hearing on a giant screen arranged by the marriage-equality organizations. (We ran into Julie there; here’s her pic of us and her whole set.) I didn’t feel like the hearing shed much new light on the case, since most of the arguments were ones we’ve heard before, but it was good to get a feel, slight though it was, for the justices’ thinking by way of their questions.

Gathered outside there were a lot of people on both sides of the debate, and though both crowds got loud especially after the hearing concluded and the attorneys emerged from the court building to make public remarks, the event was more or less peaceful.

Prop 8 hearing

Just last year at around this time, on March 4, 2008, I remember watching the webcast of the case that eventually led to the recognition of same-sex marriage rights a few months later. I’m trying to remain optimistic. This time around I guess I’m hoping for the best and preparing for the worst, or rather, something in the middle. The buzz I’ve been reading is that the court may uphold Prop 8 as a legal amendment to the state constitution, but also uphold (rightfully so, I believe) the validity of the same-sex marriages entered into between June and November 2008.

The court must give its decision within ninety days. Whichever way it goes, we have to keep fighting for our rights.