On April 19th, the Supreme Court heard oral argument in City of Ontario, CA v. Quon (previously discussed here). As the Wall Street Journal points out, the questions posed by the Justices seem to suggest that our highest court is somewhat behind the technological times.
One example highlighting the technology information gap can be seen in this exchange between Chief Justice Roberts and Dieter Dammeier, attorney on behalf of respondents:
CHIEF JUSTICE ROBERTS: What happens, just out of curiosity, if you’re — he is on the pager and sending a message and they are trying to reach him for, you know, a SWAT team crisis? Does he — does the one kind of trump the other, or do they get a busy signal?
MR. DAMMEIER: I don’t think that’s in the record. However, my understanding is that you would get it in between messages, so messages are going out and coming in at the same time, pretty much.
CHIEF JUSTICE ROBERTS: Would you know where the message was coming from?
MR. DAMMEIER: I believe so. It identifies where it’s coming from. It identifies the number of where it’s coming from. If you know the number, you know where it’s coming from.
City of Ontario, CA v. Quon to be heard by SCOTUS on April 19th.
April 19, 2010
Most people have transmitted non-employment related communications using means provided by their employer: an email chain of questionable taste forwarded through a work email account, or perhaps the exchange of gossip through the company’s internal messaging system. On April 19th, the Supreme Court will hear arguments in City of Ontario, CA v. Quon, where a police officer sent personal text messages through a pager provided by the government agency that employed him. Did the officer (and the recipients of his messages) have an expectation of privacy in those personal messages? The Ninth Circuit thought so (decision available here), and this will be the Supreme Court’s first real analysis of new technologies in the workplace. 
In the continuing evidentiary dispute within Perry v. Schwarzenegger, the Ninth Circuit has denied appeals from the ACLU and Equality California for lack of jurisdiction (available here). The interest groups are now faced with two options: obey Judge Walker’s original order requiring them to produce documents related to the Prop 8 campaign, or refuse to comply with the order and face contempt, enabling them to properly appeal to the Ninth Circuit. It is likely that these groups will face contempt and appeal, rather than produce the documents, which they claim are confidential and constitutionally protected.
It also appears that a vote to repeal Prop 8 will not be on the ballot in 2010.  Interest groups were unable to collect the necessary amount of signatures required from California voters. There is division on this issue among same-sex marriage advocates – many believed that 2010 was too soon to rally enough forces to successfully repeal Prop 8 through the ballot system, and preferred to wait until 2012.
Kris Alingod, California Signature Drive to Overturn Propisition 8 in November Ballot Fails, All Headline News, April 13, 2010, available at http://www.allheadlinenews.com/articles/7018385025 (last accessed April 13, 2010).
Defining “sexual orientation” as a constitutionally suspect class would make it easier under the legal framework of equal protection for same-sex marriage to become a national reality. California can use laws to put a group at a disadvantage as long as there is a rational basis for such; however, if that group is a “suspect class” then the level of scrutiny used by the court to examine the law is heightened. The California Supreme Court recently ruled that sexual orientation was such a class, and plaintiffs in Perry parroted the language of this decision during the federal Prop 8 trial. Regardless of which way Judge walker rules in the Northern District, his holding will likely be tested in the Ninth Circuit. Let’s look at some of the factors involved in determining the classification to see if “sexual orientation” stands a fighting chance.
Perry v. Schwarzenegger
Last week, a request was granted for the 9th Circuit to hear an appeal related to document production in Perry v. Schwarzenegger. Although Judge Walker had previously ordered certain groups, including the ACLU, to turn over documents related to the Prop 8 campaign, this ruling is being challenged on confidentiality and constitutional grounds. Same-sex marriage advocates around the country will have to wait a little longer for the outcome of the Prop 8 trial, since Judge Walker is prevented from hearing closing arguments and issuing an opinion while these evidentiary disputes continue.  Briefs from all parties are due on April 9th to address jurisdiction.
 American Civil Liberties Union, ACLU Will Appeal Order to Turn Over Campaign Documents In Prop 8 Challenge, March 23, 2010, available at http://www.aclu.org/lgbt-rights/aclu-will-appeal-order-turn-over-campaign-documents-prop-8-challenge (last accessed April 7, 2010).
I am happy to be contributing to The Ninth with commentary on the status of same-sex marriage in California. This topic is not unique to this state or this circuit, although with the recent Proposition 8 outcome, California is perhaps the most recognized arena for this battle. Public opinion has been gradually shifting on the issue of same-sex marriage, and I hope to be able to continue to discuss this topic as the nation and our courts become more accepting and more willing to extend this fundamental right.