By Elizabeth Gill, ACLU of Northern California Staff Attorney
Today the LGBT rights world was a flurry of activity, with Facebook feeds full of red for marriage equality and people the country over intently focused on what was happening inside the U.S. Supreme Court.
Sometimes the oral arguments in a case are like tea leaves that make it relatively easy to predict an outcome. But today’s Supreme Court argument in Hollingsworth v. Perry, the constitutional challenge to California’s Proposition 8, provided few such clues. What’s clear is that the Justices are all deeply engaged in both the questions on the jurisdiction and the merits that the case presents – and that’s a good thing.

Jurisdiction

On jurisdiction (the issue of whether the case is properly before the Court), the Justices insisted that all parties arguing first address whether the Prop 8 proponents had standing to appeal the case. The issue arose because after the district court found Prop 8 unconstitutional in 2010, the State of California chose not to appeal the decision. The Ninth Circuit Court of Appeals, however, concluded that the initiative proponents of Prop 8 – the folks who put Prop 8 on the ballot in 2008 – had the right to appeal the district court’s decision on behalf of the State.
Questions from the Court made it clear that this issue is very much up in the air. Justices Sotomayor and Ginsburg noted that the Prop 8 proponents have no relationship with the State, suggesting that they may not think that the proponents should be able to represent the State in defending a state law. Yet Justice Kennedy worried that not allowing the proponents to appeal would “give the State a one-way rachet,” thereby allowing Governors and other state officials “to thwart the initiative process.”

Do same-sex couples have a constitutional right to marry?

The questions from the Court on the merits (ie, whether same-sex couples in California have a constitutional right to marry) also didn’t signal any clear outcome. Some lines of questions were predictable. In response to the proponents’ argument that the State’s interest in marriage lies solely in regulating procreation, Justices Sotomayor and Ginsburg pushed back on the rationality of excluding same-sex couples from marriage while including infertile couples, older couples, and prisoners. Justices Scalia and Alito focused on the “newness” of marriage for same-sex couples and a decision on Prop 8 applying to all other states, even those that, unlike California, have not recognized equality for same-sex couples in everything but marriage.

Other lines of questioning

Yet other lines of questioning were less predictable. A number of Justices seemed uncomfortable with the idea that California and other states that have passed domestic partnership or civil union protections for gay couples could be “penalized” for extending these protections, while not extending the term marriage. And Justice Kennedy in particular seemed torn, noting that “there’s substance to the point that sociological information is new. We have five years of information [about marriage for same-sex couples] to weigh against 2,000 years of history or more.” In the next breath, however, Justice Kennedy expressed concern over the injury inflicted by Prop 8 to the 40,000 children of same-sex parents in California. These children, said Kennedy, “want their parents to have full recognition and full status. The voice of those children is important in this case, don’t you think?”
No matter what the Court decides, today was a historic day in the Supreme Court, as tomorrow will be – when the ACLU challenges the constitutionality of the Defense of Marriage Act. In both cases, it’s clear how incredibly far the LGBT movement has come from just 2003, when we were arguing that a criminal sodomy ban should be found unconstitutional.
This is our marriage equality week. Stay tuned for ACLU analysis tomorrow about the DOMA case.

By Carmen Iguina and Michael Kaufman
This week marks the fiftieth anniversary of the Supreme Court’s declaration in Gideon v. Wainwright that the Constitution guarantees indigent criminal defendants the right to appointed counsel. The Supreme Court described a “noble ideal” of “fair trials before impartial tribunals in which every defendant stands equal before the law.” As we reflect on the many unfulfilled promises of Gideon, we should also pause to consider that this “noble ideal” is not recognized in many court proceedings regarded as “non-criminal,” but where the most serious and significant interests are at stake. Nowhere is this more apparent than in the immigration system.
Each day in this country, hundreds of immigrants appear in immigration court where a judge must determine whether they will have the right to remain in their adopted home, with their families and loved ones. Even though the government is represented by a trained attorney, and even though immigration law has been referred to as “more complex than the tax code,” indigent immigrants are forced to navigate this labyrinthine system on their own and without legal counsel.  Our government does not recognize a right to appointed counsel for anyone facing deportation, no matter how incapable that individual may be to defend himself, or how complex his case may be.
The ACLU is seeking to change this deeply unfair system in Franco-Gonzalez v. Holder, a class action lawsuit that seeks to establish the right to appointed counsel for one of the most vulnerable groups in the immigration system – those with serious mental disabilities who are not capable of representing themselves and who are detained by the government while their cases are processed. On Friday, March 22, 2013, the Honorable Judge Dolly Gee of the U.S. District Court for the Central District of California will hear oral argument on an important motion filed by the ACLU to protect the rights of detainees subject to prolonged detention who are not competent to represent themselves. The preliminary injunction motion was brought on behalf of seven immigration detainees whom the government has declared incompetent, but who it nonetheless continues to detain without access to appointed counsel who could argue for their release.  The motion seeks an order requiring the government to, at a minimum; provide these individuals with the most basic due process – a bond hearing before an immigration judge where they are represented by an attorney who can argue for their release.
At stake is the fate of individuals like Veasana Meas, who entered the United States when he was about five years old and has been a lawful permanent resident for over 20 years. Mr. Meas has a severe mental disability due to his psychiatric condition, and has been found incompetent by an immigration judge. Despite the fact that the government has conceded that he is eligible for relief from removal, the government has detained him for over a year, without providing him with a bond hearing and without appointing a qualified legal representative who can argue for his release. Under no circumstances can these proceedings – where a man declared incompetent must square off against a trained government prosecutor – be considered “fair.”
This Friday, Judge Gee has the opportunity to begin to correct this injustice by granting Mr. Meas, and the others like him, the right to have a qualified legal representative argue for their release after months, and sometimes years, in detention. Such a ruling would represent a significant step in realizing Gideon’s “noble ideal” in the immigration system.