"Milk" Director's Next Project: Prop. 8

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Dustin Lance Black, who snagged an Oscar for Best Original Screenplay by writing "Milk" starring Sean Penn,  has turned his talent to Prop. 8, using courtroom transcripts and interviews to create a Broadway-bound play called "8."

And befitting Black's reputation, 8 has attracted several luminaries from television and film -- including Sir Morgan Freeman, hunky Cheyenne Jackson ("Glee" and "30 Rock") and Marisa "My Cousin Vinny" Tomei. Tony-Award-winner Joe Mantello will direct.

They and the rest of the cast will be at the Eugene O'Neill Theatre in NYC September 19th for a one-night reading -- a fundraiser for the American Foundation for Equal Rights (AFER).

It's an artistic echo of Prop 8: The Musical starring Jack Black as Jesus.  There was also a much, much more earnest (and not at all funny or entertaining) verbatim re-enactment of the Prop. 8 trial, based on actual court transcripts.

You may recall the trial was set to be televised live until the U.S. Supreme Court stepped in as the trial was getting underway to pull the plug. Except, the plug wasn't pulled -- and over objections of Prop. 8 backers courtroom cameras recorded the entire trial.

After retired Judge Vaughn Walker used an excerpt of the tapes in a college lecture that aired on C-Span, Prop. 8 proponents sued to force Walker (and everyone else who has copies) to turn over the tapes.

Prop. 8 opponents filed a cross motion, asking federal Judge James Ware to lift the protective order and release the tapes -- arguing legal attacks on Judge Walker's integrity (Ware rejected efforts to have Walker's Prop 8 decision overturned because Walker is gay).

Oral arguments on that motion will be heard August 29th in San Francisco.

Prop. 8 Standing Question a Close Call

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Months after agreeing to a request by the 9th Circuit Court of Appeals, the California Supreme Court has set a date (September 6th) for oral arguments to consider whether state law allows proponents of ballot measures to defend them in court when no one else will.

The 9th Circuit panel hearing the appeal of Judge Vaughn Walker's decision striking down Proposition 8 is awaiting the State Supreme Court's decision on standing before it returns to the merits of this appeal.

UC Davis Law Professor Vikram Amar says the legal question is complicated and is not easily categorized in liberal versus conservative terms.

“On the one hand you could say conservatives should not want cases to be brought in court very easily because they don’t want the courts meddling with what the Legislature does,” says Amar. “So conservatives should generally like a standing doctrine that limits access to federal courts to reduce litigation and reduce lawsuits.”

On the other hand, says Amar, “a conservative may want standing doctrine to be a little more generous to Prop. 8 backers to make sure initiatives like Prop. 8 aren’t killed by liberal elected politicians, like attorneys general and governors. So standing and issues like it sometimes invert political instincts because these doctrines are easy enough to manipulate so that you can often use them to reach a particular result in a particular dispute without binding yourself in other bind cases down the road … where your result inclinations may be different.”

If the court advises the 9th Circuit that California law does not give initiative proponents legal standing, it’s nearly certain the Prop. 8 appeal will die. And, Amar says, the chances the U.S. Supreme Court would take up an appeal of that are "infinitesimally small."

Amar adds, “the U.S. Supreme Court I think has no burning desire to weigh in on gay marriage, especially since this is only a question about California.”

One other thing: In choosing September 6th, Chief Justice Tani-Cantil Sakauye signals what we all assume: Governor Brown's nominee Goodwin Liu will be confirmed when the Commission on Judicial Appointments meets on August 31st. In addition to Cantil-Sakauye who chairs that panel, the other members are Attorney General Kamala Harris and Presiding Justice Joan Dempsey Klein, of the Court of Appeal, Second Appellate District, Division Three (Los Angeles), senior presiding justice of the state Courts of Appeal. The Chief Justice is a Republican. Harris and Klein are Democrats (Klein was appointed to the bench in 1978 by Jerry Brown in his first term as governor).

This case will give us the first glimpse of how the new Chief Justice and presumably the junior member of the court, Justice-to-be-Liu, will deal with the question of same sex marriage, although the underlying issue here is standing.

You can find all the briefs filed in this case here.

For the complete interview with Vikrim Amar, click here.

Will New York Break Gay Marriage Log Jam in CA?

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Friday's dramatic passage of a law permitting same sex marriage in New York State raises the obvious question: What does this mean for California? The answer? A squishy "too soon to tell."  

New York has a set of circumstances unique to that state, including an extremely popular Catholic governor with an openly gay "brother-in-law"; relatively liberal Republican legislators; Wall Street Republicanswilling to buck up wobbling GOP legislators, strong public support for gay marriage (58% in recent polls) and the ability to write the law in a way that allayed concerns of the Catholic Church .

Here in California, Prop. 8 is mired in legal battle. While supporters of same sex marriage have won important legal victories, including the recent rejection of a motion  to strike down Vaughn Walker's Prop. 8 decision, the issue is in some ways on the slow track.

The appeal of Walker's decision is stalled at the 9th Circuit, which awaits legal advice from the California Supreme Court on whether Prop. 8 backers have legal standing to appeal Judge Walker's decision. A date for oral arguments has not been set. It was thought to happen in September, but until a 7th justice is appointed by Governor Brown to replace retired justice Carlos Moreno my guess is the court will be reluctant to schedule it. Otherwise there's a risk that a random Appeals Court judge will sit in as the 7th justice and take part in the decision -- not a good scenario for the new Chief Justice.

As for the politics, insiders say it's highly unlikely gay marriage will be back on the ballot in California before Prop 8 plays out in court. That could be 2012 or 13 ... meaning the 2014 ballot at the earliest. Reason: Who wants to fund a ballot measure that could lose and undermine what is so far a successful legal challenge in federal court?

So, as for the impact of New York on California? It surely makes same sex marriage more broadly available and therefore less "marginal" in the U.S. That could affect judges, including Anthony Kennedy who most agree is the key US Supreme Court justice on this issue. They often don't like to get too far out in front of the public.

That said, at least two other states -- Minnesota and N. Carolina -- are said to be considering ballot measures banning gay marriage. So -- this issue is far from done.

Prop. 8 Judge Could Rule Tuesday

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At the end of Monday's 3-hour long oral arguments, District Court Judge James Ware said he hoped to have a written ruling on the motion to have Judge Vaughn Walker's Prop 8 ruling vacated "within 24 hours".

The bottom line issue: Did Judge Walker have a duty to recuse himself from the Prop. 8 trial or at the very least disclose he was in a same sex relationship. Prop. 8 lawyers say that left him "in the same shoes" as the two same sex couples before him, with a direct personal interest in the outcome of the case.

Both sides more or less stuck to their pre-trial briefing. Judge Ware homed in on whether the standard for recusal is subjective or objective -- and how a personal interest differed from a financial interest.

There was some fun back and forth with Judge Ware and Prop. 8 attorney Charles Cooper about relationships. Cooper asserted that people in a 10-year relationship like Walker's would "ordinarily have an interest in marriage." Ware: "Isn't that an assumption -- not all long term relationships lead to marriage." Cooper said only long term platonic relationships are not assumed to head toward marriage.

Ware asked repeatedly: "Do you have evidence Judge Ware was interested in marriage? Or are you saying the fact that he didn't disclose it is evidence that he wanted to get married." Then, "how does failure to disclose his relationship indicate he wanted to get married?"

Ware noted that Cooper never answered the question, which could well come back to haunt him.

Ware, who is African American, asked if a reasonable person thought a Black judge couldn't be impartial on a civil rights case was that sufficient for a judge to recuse? Cooper said it was not.

Then Ware asked: Is there anything about being in a same sex relationship that would cause a reasonable person to conclude that a judge could not be unbiased.

Ware also asked if a female judge who had been raped should have to disclose that in a trial about sexual assault.

The line of questioning strongly suggests Judge Ware will reject the Motion  to vacate Judge Walker's decision.

Was the Gay Judge Too Pro-Gay?

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During more than two decades on the bench, Judge Vaughn Walker almost never spoke publicly about his sexual orientation. The Republican jurist was long rumored to be gay, but it wasn't until he retired earlier this year that Walker told reporters he was gay and in a long term relationship with another man.

Prop. 8 backers filed a motion with federal Judge James Ware who replaced Walker as Chief Judge of the Northern District Court of California asking him to "vacate" the ruling -- toss it out -- because Walker should have, at the very least disclosed his situation. There will be oral arguments before Judge Ware Monday morning.

Most legal experts I've talked to doubt the motion has much merit. First, it's very late. These kinds of challenges need to be immediate -- like during the trial. Second, this is like saying a black judge can't fairly rule on civil rights cases, or female jurists cannot be impartial about gender equity issues.

The very premise of our legal system is that justice is blind -- that judges set aside their own perspective (as women, minorities, or presumably gay and lesbian judges) and rule based on the law.

It does muddy the water a bit, unlikely as it is to succeed.

Walker Turns Over Trial Videos

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   The federal judge who struck down Proposition 8 last year today turned over controversial recordings of the same sex marriage trial he presided over. Vaughn Walker -- who's now retired -- came under fire for using a short excerpt from the trial videos during a university lecture in February. Prop. 8 supporters said Walker violated the U.S. Supreme Court's order to keep the recordings private.
    In a letter to federal District Court Judge James Ware, Walker's attorney (Ephraim Margolin) indicated that his client would like the recordings back. Judge Ware will hear from both sides on the matter June 13th. Judge Ware will also consider a motion by Prop. 8 supporters to vacate Walker's decision on the grounds that Walker's same sex relationship gave him a conflict of interest in the Prop. 8 trial. Most legal experts doubt that effort will succeed.



I Do? Don't Ask.

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As California continues along its long legal road to resolving Proposition 8, the issue of same sex marriage has surfaced in a rather unexpected place -- the Navy.

As the Pentagon prepares to lift its Don't Ask, Don't Tell policy banning openly gay and lesbian servicemembers, the U.S. Navy confirmed today that it is reconsidering the possibility that gay marriage ceremonies could take place on military bases with military chaplains in states where same sex marriage is legal.

That policy was outlined in a memorandum issued last month and it would have made it easier for gay and lesbian service members to get hitched on base. Not so fast, said critics of the policy ... like Elaine Donnelly of the anti-gay Center for Military Readiness.

Donnelly and others said the proposed policy violated the Defense of Marriage Act, or DOMA, which the Obama Administration recently announced was unconstitutional.

After a firestorm erupted on Capitol Hill, the Navy announced that the policy was being "suspended" pending further review.

This shows just how far the Obama Administration -- or at least the Pentagon -- is apparently willing to push the envelope ... or at least was until the furor erupted.

If the military ultimately adopts the policy, there will no doubt be an iTunes run on downloads of "In the Navy" by the Village People.

Update, May 12 12:06pm: The House Armed Services Committee Thursday added several amendments to the 2012 National Defense Authorization Act including one that would ban Dept. of Defense employees and chaplains from conducting same sex marriages; and another explicitly stating the DOMA applies to the armed forces.

9th Circuit Punts on Prop. 8 Tapes

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   The 9th Circuit of Appeals panel considering the appeal to Judge Walker's ruling today declined to force him to return copies of the Prop. 8 trial videos. Instead, they issued an order kicking it back down to the District Court, presumably Judge James Ware who now has the case after Judge Walker's retirement. The judges noted that this is really a question of whether to lift the protective order Walker himself issued, a matter they said only the District Court controls.

   So what's going on here? Why are Prop. 8's attorneys going after Walker on the tapes and his relationship? What do they hope to gain? Perhaps the real audience is the U.S. Supreme Court -- laying seeds of doubt with them about Walker the person and Walker the Judge. The Supremes, after all, may ultimately decide this case.

Judge Fast Tracks Motion to Toss Ruling

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  James Ware, Chief Judge of the Northern District of California, today issued an order expediting the hearing schedule for efforts have Judge Walker's Prop. 8 decision striking down Prop. 8 vacated. "Due to the nature of the Motion," Ware wrote, "the Court finds good cause to expedite and specifically set a hearing on the Motion."

   Prop. 8 proponents say Walker, as a gay man in a committed relationship, had a stake in the outcome of his own decision. They say in a motion to toss out that ruling, that Walker at the very least should have acknowledged the conflict, and perhaps should have recused himself.

   In his order today Judge Ware, an appointee of President Bill Clinton, gave parties until May 13th to respond to the motion to vacate. A hearing date is scheduled for June 13th at 9 am in San Francisco.

   The Prop. 8 lawsuit ended up in Walker's courtroom by a totally random proces of assigning cases to judges. It's computer generated. There have been rumors about Walker's sexual orientation for many years, but he never acknowledged he was gay until after he retired from the bench. He spoke of his 10-year relationship with a physician in a Reuters article that appeared earlier this month.

   Legal experts are highly skeptical that Judge Ware will set aside Walker's decision. As one pointed out, all judges have a sexual orientation and a marital status giving them a theoretical stake in the ruling on same sex marriage.

    Where would it end? Should judges recuse themselves if they own a mutual fund with a stake in a company before him or her? Should the female justices of the Supreme Court recuse themselves in the Wal-Mart class action discrimination lawsuit now before them? Or any issue related to abortion?

   These issues and others will no doubt be thoroughly covered in the briefs that will be filed between now and June 13th.

    So what's going on here? Why are Prop. 8's attorneys going after Walker on his relationship -- and also on his use of the Prop. 8 tapes? What do they hope to gain? Perhaps the real audience is the U.S. Supreme Court -- laying seeds of doubt with them about Walker the person and Walker the Judge. The Supremes, after all, may ultimately decide this case.

Prop. 8 Backers: "Judge was biased"

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Some are calling it a "hail Mary" legal move, but backers of Proposition 8 filed a motion in federal court Monday calling on the Chief Judge who replaced Vaughn Walker to throw out Walker's sweeping 2010 decision striking down the ballot measure as unconstitutional. The basis for that motion: an interview Walker gave to Reuters earlier this year confirming that he is gay and in a committed 10-year relationship with another man.

“The American people have a right to a fair judicial process, free from even the appearance of bias or prejudice,” said Andrew Pugno, general counsel for the official proponents of Prop 8.  “Judge Walker's ten-year-long same-sex relationship creates the unavoidable impression that he was not the impartial judge the law requires.  He was obligated to either recuse himself or provide full disclosure of this relationship at the outset of the case.  These circumstances demand setting aside his decision.”

Pugno says Judge Walker essentially "stood in the shoes" of the two same-sex couples who were plaintiffs in the case and that he, like them, may have benefited directly by his own decision to legalize gay marriage in California.

Can it work? UC Hastings law professor David Levine is highly skeptical. Levine points out that in any case involving gay and lesbian rights, "every judge has a sexual orientation and every judge has a marital status."

“Under governing California law Judge Walker currently cannot marry his partner.  But his ruling in this case, if ultimately upheld, would give him a right to do so,” Pugno pointed out.

“We deeply regret the necessity of this motion.  But if the courts are to require others to follow the law, the courts themselves must do so as well,” Pugno added.