The California Supreme Court voted unanimously on Wednesday to decide the question of whether supporters of Proposition 8, the ballot measure that repealed California’s same-sex marriage law, have legal standing to appeal a federal court decision last year invalidating the ballot measure.
In a statement released late Wednesday, a court spokesperson said the state Supreme Court would expedite the process for receiving legal briefs and planned to schedule oral arguments for the case in September.
Its decision, expected later in the year, would determine whether same-sex marriage opponents can proceed with their appeal of a U.S. District Court decision last year invalidating Proposition 8 on grounds that it violates the U.S. Constitution by denying same-sex couples the right to marry.
The legal standing issue surfaced in 2009 when former California Gov. Arnold Schwarzenegger and then-Attorney General Jerry Brown, now the governor, refused to defend Prop 8 against a lawsuit filed by two same-sex couples.
The private citizens who organized Prop 8 were allowed to intervene on its behalf during the district court proceedings, including a civil trial. But gay rights attorneys challenging the ballot measure on appeal argued that only the state could defend the measure because it was a state law.
On Jan. 4, the Ninth Circuit U.S. Court of Appeals sidestepped a ruling on whether the district court was correct in declaring Prop 8 unconstitutional and sent the lawsuit filed by the gay couples to the state’s Supreme Court for an advisory ruling on the standing question.
If the California Supreme Court rules Prop 8 supporters lack legal standing, the district court ruling would take effect, allowing same-sex couples to marry as they had during the short period of time before voters approved Prop 8 in the November 2008 election.
However, most legal observers believe the Prop 8 backers would respond immediately by asking the U.S. Supreme Court to issue a stay to prevent same-sex marriages from resuming until the U.S. Supreme Court decides whether it would take the case on its merits.
Most legal observers believe the case will ultimately wind up in the U.S. Supreme Court.
Meanwhile, if the California Supreme Court rules in favor of granting legal standing to Prop 8 backers, the case would go back to the Ninth Circuit appeals court, which would then hear the case on the merits of whether Prop 8 violates the U.S. Constitution, as gay rights attorneys and the same-sex couples who brought the lawsuit claim it does.
In its statement released today, the California Supreme Court gave a legal explanation of the question it says it will answer after deliberating over the case:
“Whether under Article II, Section 8 of the California Constitution, or otherwise under California law, the official proponents of an initiative measure possess either a particularized interest in the initiative’s validity or the authority to assert the state’s interest in the initiative’s validity, which would enable them to defend the constitutionality of the initiative upon its adoption or appeal a judgment invalidating the initiative, when the public officials charged with that duty refuse to do so.”
The court’s statement says Prop 8 supporters’ attorneys must file their opening brief for the case by March 14, and attorneys representing the same-sex couples seeking to invalidate Prop 8 must file their response by April 4.
“The California Supreme Court shortened the normal briefing schedule to expedite consideration and resolution of the issues in the matter and to accommodate oral argument as early as September 2011,” the statement says.
Jennifer Pizer, an attorney for Lambda Legal, an LGBT legal advocacy group that’s monitoring the Prop 8 case, called on the California Supreme Court to confirm that Prop 8 backers don’t have legal standing to appeal the case.
Prop 8 supporters “are not law enforcers and have the same limited rights as everyone else to litigate only when their own rights are at stake, not merely to assert their opinions about others’ rights,” Pizer said in a statement.
“Initiative proponents also cannot step into the shoes of the attorney general, the governor or other state officials,” she said. “The reason for this is basic: the governor and attorney general are elected by the people to represent all the people, not just one point of view on one issue, out of countless, competing concerns.”
A spokesperson for Prop 8 supporters, including the National Organization for Marriage, which campaigns against same-sex marriage rights, could not be immediately reached for comment.
Chad Griffin, president of the American Foundation for Equal Rights, which is financing the same-sex couples’ lawsuit seeking to overturn Prop 8, said his group is hopeful that they will prevail and same-sex marriage will be declared a constitutional right.
“AFER is challenging Prop 8 not only for our plaintiffs, two loving couples who want to marry, and not only for the thousands of loving couples like them, but for the simple reason that our laws should treat everyone equally,” he said.
Anti-transgender Ariz. ballot measure dies
SCR1013 will not go before voters in November
BY ERIN REED | In a stunning defeat for anti-transgender activists in Arizona, a major bill targeting trans people in schools has failed. The bill, Senate Concurrent Resolution 1013, would have banned trans students from using bathrooms matching their gender identity. It also would have forced teachers to misgender their trans students unless parental permission was received.
Most importantly, the bill would have placed the issues on the November election ballot, bypassing Arizona Gov. Katie Hobbs’ veto, which has been used against similar legislation. This represents the first major ballot referendum on trans people that has been defeated in 2024 and could signal Republican hesitancy around the electoral impacts of such referendums.
The bill was brought forward by Sen. John Kavanaugh, who has previously sponsored other legislation targeting trans people in schools. Kavanaugh’s district includes portions of Scottsdale, Ariz., which is notably the same city where the Alliance Defending Freedom is headquartered.
In the Senate Education Committee earlier this month, over 500 people registered opposition to the bill, and only 32 registered in favor, one of the most lopsided testimony ratios in any bill this year nationwide. Speaking against the bill in the hearing, Democratic Sen. Christine Marsh pointed out the negative consequences that hearing such a bill would have, stating, “This will become a debate on a statewide level harming god knows how many kids and forcing them into further isolation, harassment, bullying, victimization and vulnerability that comes. I think the effect of that will be incalculable.”
When it came time for a committee decision, Republican Sen. Ken Bennett voted in favor of the bill but stated he had concerns with the way the bill was written and that he would have trouble supporting it for final passage in the Senate.
Then, on Monday, the bill was brought forward for a final vote on the full Senate floor. Democratic senators read statements from parents and trans youth who would be impacted by the bill as the votes rolled in. Then, Bennett voted “no,” explaining his vote: “I am very concerned about putting this bill to a vote of the people. These bills combined are roughly a third of the entire U.S. Constitution. When we put things on the ballot for people to vote on them, if something goes awry, if there are unintended consequences, we have to go back to the people to fix it.”
The defeat means that in Arizona, the question will not advance to the November ballot. However, in other states, ballot measures are currently being pursued. In California, the group “Protect Kids California” has enlisted high-profile anti-trans activists such as Cole and Chris Elston to collect signatures. Measures there would out trans students to their parents, ban them from participating in sports and using bathrooms that match their gender identity, and would ban gender-affirming care for trans youth. Similar ballot measures are also being pursued in Colorado. Nevertheless, with the defeat of SCR1013, there may be hesitancy to push for this as a major ballot issue in 2024 in a swing state like Arizona.
Anti-LGBTQ legislation is not highly popular, especially in general election contests. In the most recent school board elections in 2023, Moms for Liberty lost 70 percent of their school board elections, having run primarily on anti-trans issues in schools. Meanwhile, Democrats took the House and Senate in Virginia after Gov. Glenn Youngkin pushed a party platform at rallies that targeted trans youth throughout the state. Anti-trans politics have also previously failed to help Republicans in Arizona. In the 2022 governor’s race, Republicans attempted to target Hobbs’ husband for providing counseling for trans youth in the closing weeks of the campaign — a gambit that failed to swing results in their favor.
That is certainly what Gaelle Esposito, a partner at Creosote Partners who has worked with major organizations supporting trans people in the state, believes. When asked about what the bill’s defeat says in an election year, she responded, “we are also starting to see that Republicans recognize that anti-trans hatred and pure bigotry is not a big winner for them. It’s not like they have seen time and again, including here in Arizona, that this just doesn’t play well with voters. It doesn’t sit well with people.”
Esposito added a hopeful message: “The fact that we didn’t see the full force of their network trying to squeeze them to get this on the ballot shows they know it too. That they, in an election year here in Arizona, where so much is critical for them, this went down in flames … I think shows how the tide is turning in our favor.”
Erin Reed is a transgender woman and researcher who tracks anti-LGBTQ+ legislation around the world and helps people become better advocates for their queer family, friends, colleagues and community. Reed also is a social media consultant and public speaker.
The preceding post was previously published at Erin in the Morning and is republished with permission.
Trial for man charged with assaulting gay men in D.C. park postponed for third time
Indictment says attacker squirted victims with pepper spray
The trial for a 50-year-old man who was arrested July 14, 2022, on charges that he allegedly assaulted five men he believed to be gay at D.C.’s Meridian Hill Park between 2018 and 2021 was postponed for the third time last month and has now been rescheduled for Aug. 19 of this year.
The arrest of Michael Thomas Pruden came two weeks after a federal grand jury handed down an indictment on June 29, 2022, charging him with five counts of assault on federal park land, one count of impersonating a federal officer and a hate crime designation alleging that he assaulted four of the men because of their perceived sexual orientation.
Prosecutors with the Office of the U.S. Attorney for D.C. filed a motion in court on Jan. 10 of this year opposing a request by Pruden’s defense attorney to postpone the most recent prior trial date set for Feb. 26.
“Following indictment in June 2022, the defendant has delayed the trial in this case several times, including by firing two prior attorneys,” the prosecutors’ motion states. “While the government has not previously objected to any continuance, no further delay is warranted,” the motion says. “This is a straightforward case that should proceed to trial as currently scheduled.”
The indictment against Pruden by a U.S. District Court for D.C. grand jury provides some of the details surrounding the case.
“After nightfall, Meridian Hill Park was informally known in the Washington, D.C., community to be a meeting location for men seeking to engage in consensual sexual encounters with other men,” the indictment says. “This practice is colloquially known as ‘cruising,’” the indictment continues.
“Michael Thomas Pruden frequented Meridian Hill Park after nightfall and on multiple occasions, including those described below, assaulted men in Meridian Hill Park by approaching them with a flashlight, giving them police-style commands and spraying them with a chemical irritant,” the indictment states.
Virginia court records show that the D.C. indictment against Pruden was handed down 11 months after a U.S. District Court jury in Alexandria, Va., found him not guilty of a charge of assault with a dangerous weapon for allegedly pepper spraying and hitting in the head with a large tree branch a man in Daingerfield Island Park in Alexandria, which is also known as a gay cruising site.
Federal Public Defender A.J. Kramer, who is representing Pruden in the D.C. case, said in his own motion calling for postponing Pruden’s Feb. 26 trial date that he has at least two other unrelated trials coming up soon and what he called voluminous documents recently provided to him by prosecutors made the latest postponement necessary.
“Firstly, while Mr. Pruden prefers to go to trial as soon as possible, counsel cannot be ready by February 26, 2024,” his motion states. “Given that the case against Mr. Pruden is actually five cases spanning a three-year period, the discovery is extremely voluminous, in excess of 7,000 pages,” he states in his motion. “Due to this as well as counsel’s other pending matters in the coming weeks, counsel is unable to effectively prepare motions and prep for trial under the current timeline.”
By the 7,000 pages of “discovery” documents, Kramer was referring to the requirement that prosecutors turn over to the defense attorney in advance of a trial details of the evidence prosecutors plan to present at a trial. U.S. District Court Judge Jia M. Cobb approved Pruden’s request for the postponement in a Feb. 5 ruling.
Court records also show that Pruden was released on personal recognizance following his arrest into the custody of his mother, who lives in Norfolk, Va., where he has been staying since his release. Among other things, conditions for his release prohibit him from having any contact with the individuals he is charged with assaulting and require that he always remain inside his mother’s residence from sunset to sunrise.
Abbott tells UN to ‘pound sand’ amid criticism of anti-LGBTQ policies in Texas
Governor signed seven anti-LGBTQ laws last year
Texas Gov. Greg Abbott (R) on Sunday dismissed news coverage of a letter issued last month to the United Nations that expressed alarm over the “deteriorating human rights situation” for LGBTQ people in the Lone Star State.
Signed by Equality Texas, ACLU of Texas, GLAAD, the Human Rights Campaign, and the University of Texas at Austin School of Law Human Rights Clinic, the letter details how Texas legislators introduced 141 bills targeting the LGBTQ community, passing seven into law.
“The UN can go pound sand,” Abbott wrote in a post on X.
The UN can go pound sand. https://t.co/JpWguPHGHJ— Greg Abbott (@GregAbbott_TX) February 25, 2024
In 2023, the governor signed a ban on gender affirming care for transgender youth, a ban on diversity, equity, and inclusion programs at public universities, a ban on transgender athletes competing in college sports, a law allowing schools to use religious chaplains for counseling services, a ban on “sexually oriented performances” on public property accessible to minors (which targets drag shows), a law allowing schools to restrict LGBTQ books, and a ban on nondiscrimination ordinances by local governments.
The groups argued in their letter that these policies constitute a “systemic discriminatory policy” in violation of international human rights laws, such as the International Covenant on Civil and Political Rights, a multilateral treaty whose tenets are enforced by the UN Human Rights Committee.