Experts: Prop 8 ruling may dodge high court

9th Circuit panel crafts its decision striking down California amendment narrowly, avoids question of whether other states can ban marriage

Prop8

DAY OF DECISION | Supporters of marriage equality react outside the courthouse after a federal appeals court declared California's ban on same-sex marriage unconstitutional on Tuesday, Feb. 7 in San Francisco. (AP Photo/San Francisco Chronicle, Lea Suzuki)

LISA LEFF  |  Associated Press

SAN FRANCISCO — Conservative critics like to point out that the federal appeals court that just declared California’s same-sex marriage ban to be unconstitutional has its decisions overturned by the U.S. Supreme Court more often than other judicial circuits, a record that could prove predictive if the high court agrees to review the gay marriage case on appeal.

Yet legal experts seemed to think the panel of the San Francisco-based 9th U.S. Circuit of Appeals that struck down the voter-approved ban on Tuesday, Feb. 7 purposefully served up its 2-1 opinion in a narrow way and seasoned it with established holdings so the Supreme Court would be less tempted to bite.

The appeals court not only limited the scope of its decision to California, even though the 9th Circuit also has jurisdiction in eight other Western states, but relied on the Supreme Court’s own 1996 decision overturning a Colorado measure that outlawed discrimination protections for gay people to argue that the voter-approved Proposition 8 violated the civil rights of gay and lesbian Californians.

That approach makes it much less likely the high court would find it necessary to step in, as it might have if the 9th Circuit panel had concluded that any state laws or amendments limiting marriage to a man and a woman run afoul of the U.S. Constitution’s promise of equal treatment, several analysts said.

“There is no reason to believe four justices on the Supreme Court, which is what it takes to grant (an appeal) petition, are champing at the bit to take this issue on,’’ University of Michigan law school professor Steve Sanders said. “The liberals on the court are going to recognize this was a sensible, sound decision that doesn’t get ahead of the national debate … and I don’t think the decision would be so objectionable to the court’s conservatives that they would see a reason to reach out and smack the 9th Circuit.’’

Lawyers for the coalition of religious conservative groups that qualified Proposition 8 for the November 2008 ballot and campaigned for its passage said they have not decided whether to ask a bigger 9th Circuit to rehear the case or to take an appeal directly to the Supreme Court.

However, they said they were optimistic that if the high court accepts an appeal, Tuesday’s ruling would be reversed.

“The 9th Circuit’s decision is completely out of step with every other federal appellate and Supreme Court decision in American history on the subject of marriage, but it really doesn’t come as a surprise, given the history of the 9th Circuit, which is often overturned,’’ Andy Pugno, the coalition’s general counsel, said in a fundraising letter to Proposition 8’s supporters. “Ever since the beginning of this case, we’ve known that the battle to preserve traditional marriage will ultimately be won or lost not here, but rather in the U.S. Supreme Court.’’

Regardless of their next steps, gay and lesbian couples were unlikely to be able to get married in California anytime soon. The 9th Circuit panel’s ruling will not take effect until after the deadline passes in two weeks for Proposition 8’s backers to appeal to a larger panel, and the earliest the Supreme Court could consider whether to take the case would be in the fall.

Judge Stephen Reinhardt, who was named to the 9th Circuit by President Jimmy Carter and has a reputation as the court’s liberal lion, wrote Tuesday’s 80-page majority ruling with concurrence from Judge Michael Daly Hawkins, an early appointee of President Bill Clinton. Judge Randy Smith, who was the last 9th Circuit judge nominated by President George W. Bush, dissented.

In tailoring the decision to apply only to California, Reinhardt cited two factors that distinguish Proposition 8 from the one-man, one-woman marriage laws and constitutional amendments in the other 9th Circuit states and that he said demonstrate that it “serves no purpose, and has no effect, other than to lessen the status and humanity of gays and lesbians.’’

The first is that California since 2005 has granted same-sex couples all the rights and benefits of marriage if they register as domestic partners.

The second is that five months before Proposition 8 was enacted as a state constitutional amendment, the California Supreme Court’s Court had legalized same-sex marriage by striking down a pair of laws that had limited marriage to a man and a woman. California is the only state, therefore, where gays have won the right to marry and had it stripped away.

The amendment’s “singular’’ work of denying gay Californians the designation of marriage while leaving in place domestic partnerships proves that Proposition 8 deprives same-sex relationships of society’s dignity and respect, Reinhardt wrote.

“A rose by any other name may smell as sweet, but to the couple desiring to enter into a committed lifelong relationship, a marriage by the name of ‘registered domestic partnership’ does not,’’ he said. “We are excited to see someone ask, ‘Will you marry me?’, whether on bended knee in a restaurant or in text splashed across a stadium Jumbotron. Certainly, it would not have the same effect to see, ‘Will you enter into a registered domestic partnership with me?’”

The opinion goes on to draw parallels between California’s same-sex marriage ban and the Colorado opinion the Supreme Court struck down on a 6-3 vote after concluding that it was based on moral disapproval of gays. Justice Anthony Kennedy wrote the majority opinion in that case, known as Romer v. Evans, and if the court agrees to take up Proposition 8, the similarities could hit the “sweet spot’’ that might persuade him to side with four other justices in upholding the 9th Circuit, said Douglas NeJaime, an associate professor at Loyola Law School in Los Angeles.

“Everyone is looking to Justice Kennedy, assuming that Justice Kennedy would not issue a sweepingly bad decision for gay rights, and yet people don’t know if he is ready to go so far as to say nationwide same-sex couples can get married,’’ NeJaime said. “I think the opinion evidences a real savviness about the posture of this case and its position in the trajectory of a national movement for marriage for same sex couples.’’

Smith, the lone dissenting judge, disagreed that Proposition 8 necessarily served no purpose other than to treat gays and lesbians as second-class citizens. He pointed out that its backers claimed it could serve to promote responsible child-rearing among opposite-sex couples, and said courts were obligated to uphold laws in the face of civil rights challenges unless they were “clearly wrong, a display of arbitrary power (or) not an exercise of judgment.’’

“There is good reason for this restraint,’’ Smith said.

This article appeared in the Dallas Voice print edition February 10, 2012.

—  Kevin Thomas

Houston’s State Rep. Garnet Coleman applauds Prop. 8 decision

State Rep. Garnet Coleman

Rep. Garnet Coleman, D-Houston, took to his blog today to applaud yesterday’s decision by the United States Ninth Circuit Court of Appeals declaring Proposition 8  unconstitutional (Prop. 8, passed in 2008, prohibited marriage equality in California):

“Yesterday’s 9th Circuit decision, just like the decision in Lawrence v. Texas, is a stepping stone on the path to marriage equality for all. As Judge Stephen R. Reinhardt of the 9th Circuit Court of Appeals wrote in the opinion, ‘Proposition 8 serves no purpose, and has no effect, other than to lessen the status and human dignity of gay men and lesbians in California, and to officially reclassify their relationships and families as inferior to those of opposite-sex couples.’ The same holds true for the marriage equality ban in Texas. That is why I continue to fight for marriage equality and continue to file the repeal of the ban of same sex marriage. Denying gay couples the right to marry is unconstitutional and a blatant denial of human rights. “

Coleman has a long history of filing pro-LGBT legislation in the Texas House. Last year he introduced historic legislation that, had it passed, would have called for a state-wide vote to repeal the section of Texas’ constitution prohibiting same-sex marriage, so he’s no stranger to the battle for marriage equality.

Coleman is seeking re-election to his District 147 seat. He will face long-time local LGBT activist Ray Hill in the Democratic Primary. No republican candidate has filed for the seat.

Read Coleman’s full statement on his blog.

—  admin

Court won’t release videos from Prop 8 trial

LISA LEFF | Associated Press

LOS ANGELES — A federal appeals court refused Thursday to unseal video recordings of a landmark trial on the constitutionality of California’s same-sex marriage ban but said it needed more time to decide if a lower court judge properly struck down the voter-approved ban.

Siding with the ban’s supporters, the 9th U.S. Circuit Court of Appeals in San Francisco ruled the public doesn’t have the right to see the footage that former Chief U.S. District Judge Vaughn Walker had produced with the caveat it would be used only by him to help him reach a verdict.

Chief Judge Walker “promised the litigants that the conditions under which the recording was maintained would not change — that there was no possibility that the recording would be broadcast to the public in the future,” a three-judge 9th Circuit panel said in a unanimous opinion.

The 2010 trial over which Walker presided lasted 13 days and was the first in a federal court to examine if prohibiting gay couples from marrying violates their constitutional rights.

It was open to the public and received widespread media coverage, so the recordings would not have revealed any new evidence or testimony.

Walker, who has since retired and revealed he is in a long-term relationship with another man, originally wanted to broadcast the trial in other federal courthouses and on YouTube.

The U.S. Supreme Court forbade him from moving forward with that plan after the ban’s sponsors argued that distributing trial footage could subject their witnesses to harassment.

At the time, the 9th Circuit did not allow the federal courts within its jurisdiction to televise trials. The appeals court since has adopted rules that would permit trials to be broadcast under limited conditions.

“The 9th Circuit correctly ruled that when a trial judge makes a solemn promise, as Judge Walker did by assuring the parties that the trial video would not be publicly released, the judiciary must not be allowed to renege on its pledge,” said Austin Nimocks, a lawyer for the coalition of religious conservative groups that sponsored Proposition 8,

“To rule otherwise would severely undermine the public’s confidence in the federal courts by breaching the bond of trust between the people and their justice system,” he said.

The 9th Circuit has said it wanted to resolve the public release of the trial videos before it addresses the more substantive issue of whether Walker correctly struck down Proposition 8 on federal constitutional grounds.

The appeals court panel heard arguments about that a year ago, but does not face a deadline for making a decision.

A coalition of media organizations, including The Associated Press, and lawyers for the two couples who successfully sued to overturn Proposition 8 in Walker’s court have petitioned to have the Proposition 8 trial recordings made public on First Amendment grounds. The group maintained the ban’s backers have not proven their witnesses would be harmed if people got to see what they said under oath.

Walker’s successor as the chief U.S. district judge in Northern California, James Ware, agreed in September and planned to unseal the videos. In its Thursday ruling, the three-judge 9th Circuit panel said Ware had erred and ordered the recordings kept under seal.

“The integrity of our judicial system depends in no small part on the ability of litigants and members of the public to rely on a judge’s word. The record compels the finding that the trial judge’s representations to the parties were solemn commitments,” the appeals court said.

The panel also refused to return to Walker a copy of the recordings that Ware gave his colleague upon his retirement last year. Walker had used snippets of footage in public talks about the value of broadcasting court proceedings, but gave it back while the skirmish over the videos played out.

Gay rights advocates said they wanted to use the recordings to try to puncture political arguments used by opponents of same-sex marriage, but that Thursday’s decision would not be an insurmountable obstacle to that goal.

Screenwriter Dustin Lance Black, who serves on the board of the group funding the effort to overturn Proposition 8 in court, has written a play called 8 based on the trial transcript and interviews from the 2010 court fight that will premiere in Los Angeles next month with a cast that includes George Clooney, Jamie Lee Curtis and Martin Sheen.

“The fact that (the marriage ban’s backers) have gone this distance to keep the tapes from the American public, what it has done and increasingly will do, is inspire efforts that we will help lead to make sure the public knows what happened in the courtroom,” said Chad Griffin, president of the American Foundation for Equal Rights.

—  John Wright

DADT repeal starts Tuesday, but will discrimination continue?

DOJ says Log Cabin lawsuit should be declared ‘moot,’ but LCR attorney warns that without ruling, discriminatory policies could be reinstated

Baldwin.Polis
STILL FIGHTING | Attorney Dan Woods, right, and Log Cabin Republicans Executive Director R. Clarke Cooper, left, pose together following the ceremony last December in which President Obama signed legislation repealing DADT. (Photo courtesy Log Cabin Republicans)

Lisa Keen  |  Keen News Service
lisakeen@me.com

“Don’t ask, don’t tell” will be off the books Tuesday, Sept. 20. But there is still concern among some that the removal of that specific law barring gays from the military will not stop discrimination against gays in the military.

And Servicemembers Legal Defense Network is warning active duty military to be aware of rules affecting them if they choose to be openly gay in uniform.

Log Cabin Republicans’ attorney Dan Woods reminded a three-judge panel of the 9th Circuit U.S. Court of Appeals on Sept. 1 that Congressional repeal of DADT is not enough to end discrimination against gays in the military. Woods noted that before passage of DADT in 1993, there was a military regulation — not a federal law — that banned “homosexuals” from the military.

“That ban had existed for decades,” Woods said.

And if the 9th Circuit panel does not affirm a district court decision finding DADT unconstitutional, Woods added, “the government will be completely unconstrained in its ability to again ban gay service in the military.”

The 9th Circuit panel is considering a motion by the Department of Justice to declare the Log Cabin lawsuit moot since Congress has repealed DADT.

R. Clarke Cooper, executive director for Log Cabin Republicans said Tuesday, Sept. 13, that there is no prescribed timeline for the 9th Circuit issuing its decision on the motion.

“I know some people are expecting that we will have a ruling on that by Sept. 20 or just after that, but Dan Woods has told us that it could happen any time. And ‘any time’ means it could come in a month, or it could take several months. There’s nothing that says when the court has to issue its ruling,” Cooper said.

Woods pointed out that even since the repeal was passed by Congress last December, there is a new Congress now, there has already been a House vote to de-fund implementation of repeal, and there are “multiple candidates for president promising, as part of their campaign platforms, to repeal the repeal.”

One member of the panel, Judge Barry Silverman, suggested the latter concern, about presidential candidates, seemed a bit “speculative.”

“Well, there’s an election next year,”  responded Wood.

“Come back next year,” the judge shot back, with a barely stifled laugh. “If any of these things come to pass, it’ll be a different story. But in the meantime, this is the situation we’re faced with.”

The Department of Justice is urging the federal appeals panel to declare the Log Cabin Republicans v. U.S. lawsuit moot. The lawsuit — which won a powerful decision from U.S. District Court Judge Virginia Phillips in September 2010 — was largely responsible for prompting Congress to finally pass a bill repealing DADT in December.

Phillips had ordered the military to immediately stop enforcing DADT and, though the 9th Circuit put that order on hold pending appeal, military officials began warning Congress that it seemed inevitable the courts would strike down the law.

The military wanted a smooth transition to a DADT-free force, and Congress agreed.

Henry Whitaker, attorney for the U.S. Department of Justice, urged the panel to declare the litigation moot. He said the government would submit a motion after Sept. 20 to vacate the ruling and have the case sent back to the district court for dismissal.

Whitaker said that, if the 9th Circuit does affirm the lower court ruling, the government might even consider appealing it to the U.S. Supreme Court. And he stated several times that, until repeal takes effect, the government “is defending” DADT on its merits.

Woods said that if the federal appeals panel agrees with the government and vacates the lower court decision, and then a new president or Congress reinstates the policy, “we’d have to start all over again to prove again that laws banning open gay servicemembers are unconstitutional.

“This case took seven years to get here today. And it would be inappropriate to have to have people go through that all over again,” Woods said.

Woods also noted that affirming Judge Phillips’ ruling would remedy “collateral consequences” caused by DADT. Among those concerns, he said, are loss of benefits under the G.I. bill and benefits from the Veterans Administration, inability to be buried in VA cemeteries, and requirement that discharged servicemembers pay back their student loans.

The DOJ’s Whitaker said Log Cabin’s fear that a future Congress or president might re-enact DADT “does not pass the straight face test.” And, he added, said individuals discharged under DADT could seek remedies to these collateral forms of discrimination through individual lawsuits.

But Woods argued that it “ought not be necessary for every one of the thousands of people who have been discharged under this law to have to do that.

“If you vacate the judgment and take away the case,” Woods added “the government is unconstrained and simply might do it again. History might repeat itself.”

For now, SLDN is trying to prepare gay active duty servicemembers for the historic change that is about to take place Tuesday when the 60-day review period will have ticked away following certification of military readiness to implement repeal.

And, not surprisingly, some organizations, including SLDN, plan to celebrate the end of the 18-year-old ban.

“Many servicemembers want to attend these celebrations, and some might want to speak at them,” noted the SLDN website, adding that “no special rules apply to attendance at or participation in such events.”

But SLDN did warn gay servicemembers not to criticize their commanders — past or present — or elected officials, and not to urge defeat of any particular elected official or candidate. And the organization warned servicemembers not to wear their uniform to an event that is partisan in nature.

For more details on what’s allowed and disallowed for active duty service members in uniform, see SLDN.org.

© 2011 Keen News Service. All rights reserved.

This article appeared in the Dallas Voice print edition September 16, 2011.

—  Kevin Thomas

Calif. court mulls appeal rights of Prop 8 backers

LISA LEFF | Associated Press

SAN FRANCISCO — California’s same-sex marriage ban endured its latest legal test Tuesday as the state’s high court grilled attorneys on whether Proposition 8′s backers have legal authority to appeal a federal ruling that overturned the voter-approved measure.

The tenor of the justices’ questioning during the more than hour-long hearing often leaned in favor of arguments by backers of the ban, who argue that the state Constitution gives ballot initiative proponents legal authority to defend their measures in court.

On that critical question, several justices noted that the California Supreme Court always has, as a matter of practice if not written policy, allowed the sponsors of ballot questions to appear before it when their measures were challenged.

“Never in any recorded (case) have proponents been denied the right to advance their interests,” Associate Justice Kathryn Werdegar noted during the closely watched arguments. “The present state of California law is we allow liberal intervention.”

The Supreme Court is examining the scope of the power afforded the official backers of ballot initiatives at the request of a federal appeals court that is reviewing a federal judge’s year-old ruling that Proposition 8 violates the constitutional rights of same-sex couples.

The 9th U.S. Circuit Court of Appeals has expressed doubts about the ability of Proposition 8′s sponsors to challenge the lower court ruling absent the involvement of California’s governor or attorney general, both of whom agreed the ban was unconstitutional and refused to appeal.

But the 9th Circuit punted the question to the California Supreme Court earlier this year, saying it was a matter of state law. Although the appeals court still must decide for itself if Proposition 8′s supporters are eligible under federal court rules to appeal the ruling that struck down the ban, the state court’s input is likely to weigh heavily in its decision.

If the state Supreme Court says the ban’s proponents did not have standing to appeal, and if the 9th Circuit and ultimately the U.S. Supreme Court ultimately agree, it could clear the way for same-sex marriages to resume in California.

If the court holds the proponents were qualified to appeal and the 9th Circuit agrees, the appeals court would then weigh the broader civil rights implications of Proposition 8. A decision on the ban’s constitutionality is expected to be appealed to the U.S. Supreme Court.

While agreeing that the state Supreme Court has never refused to give initiative proponents a seat at the defense table, several justices quizzed Charles Cooper, an attorney for the coalition of religious and conservative groups that sponsored Proposition 8, on whether there was a difference between the court using its discretion to do so and issuing an opinion that would be binding on future courts.

Chief Justice Tani Cantil-Sakauye observed that in the vast majority of cases in which initiative backers have been allowed to defend their measures, they have been “standing shoulder-to-shoulder” with the attorney general’s office, not acting on their own.

Cooper agreed that he was seeking to remove some of the court’s discretion, but said the justices could draft their guidance so it would only apply to situations, such as with Proposition 8, where state officials have refused to defend laws already approved by voters.

Theodore Olson, the attorney representing the two same-sex couples who successfully sued in federal court to strike down Proposition 8, argued that permitting initiative sponsors to step in under such circumstances would infringe on the authority of elected state officials.

“There is nothing in the California Constitution or the statutes that give private citizens the right to take on the attorney general’s constitutional responsibility to represent the state in litigation in which the state or its officers are a party,” Olson said.

“Is there any authority for the attorney general and the governor to second-guess a majority of the population?” Associate Justice Ming Chin interrupted.

Olson answered yes, explaining that the attorney general is obligated not to defend laws he or she judges to be unconstitutional.

Associate Justice Goodwin Liu, who was sworn in on Thursday and serving his first day on the court Tuesday, picked up the line of questioning.

“It seems to me the 9th Circuit has set up a hoop the initiative proponents must jump through to get to appeal,” Liu said. “Given the fact that initiative proponents clearly would have standing to appeal if this litigation was in state court … why can’t we read (the U.S. Constitution) to give the initiative proponents what they need to jump through that hoop?”

Associate Justice Joyce Kennard, who along with Werdegar was in the 4-3 Supreme Court majority that briefly cleared the way for same-sex marriages in California before voters passed Proposition 8, also questioned how the court could deny initiative sponsors the right to appeal in cases where state officials have refused to defend a law.

“It would appear to me that to agree with you would nullify the great power the people have reserved for themselves pertaining to proposing and adopting state Constitutional amendments,” she said.

Werdegar suggested that the court could tell the appeals court that it ordinarily grants initiative proponents the right to defend their measures, but stop short of establishing a new legal precedent.

The court has 90 days in which to issue its opinion.

—  John Wright

Supreme Court hearing on Prop 8 to be televised

The seven-member California State Supreme Court will hear arguments Sept. 6, on whether state law gives the anti-gay group which pushed for passage of  Proposition 8, the voter approved state constitutional amendment banning gay marriage, the right to appeal a federal court decision declaring Prop 8 unconstitutional. And unlike the initial trial in Judge Vaughn Walker’s court, the Supreme Court hearing will be televised.

Court spokeswoman Lynn Holton said, “Because of public interest in the case, the court has approved a live statewide television broadcast of the arguments on the California Channel, a public affairs network.”

According to SF Appeal, should the sponsors succeed in their right to appeal, the case will go back to the 9th Circuit federal appeals court for review, a process that might take several months — just like everything else involving the court system.

However, the federal appeals court has said earlier this year that if the sponsors lack legal standing, the federal court will be required to dismiss the appeal.

The state high court has broadcast marriage equality-related arguments before, such as In re marriage Cases, was a California Supreme Court case with the dual holding that “statutes that treat persons differently because of their sexual orientation should be subjected to strict scrutiny.”

 

—  admin

Witt, DOD reach settlement in DADT case

Major Margaret Witt

DOD agrees to allow major to retire with full benefits; DOJ won’t appeal her 9th Circuit victory

LISA KEEN | Keen News Service
lisakeen@me.com

The ACLU of Washington State announced Tuesday, May 10, that Air Force Reserve nurse Margaret Witt has reached a final settlement with the Department of Defense in her highly publicized litigation to avoid discharge under “don’t ask, don’t tell.”

According to an ACLU press release, the DOD has agreed to allow Witt to retire with full benefits and the Department of Justice will drop its appeal of a federal district court ruling in her favor.

Last September, Judge Ronald Leighton of the U.S. District Court for Western Washington ruled that Witt’s sexual orientation did not negatively impact her unit’s morale or unit cohesion and that her discharge under DADT violated her Fifth Amendment right to due process.

“I am proud to have played a role in bringing about the repeal of ‘don’t ask, don’t tell,’” Witt said in a statement released by the ACLU. “I am so pleased that the tens of thousands of lesbians and gays who have served their country honorably will be able to serve openly.”

The Witt v. U.S. case has been a high-profile one, and the subject of debate on the floor of the Senate and in the confirmation hearing of the U.S. Supreme Court’s newest member, Elena Kagan. It was just one of several cases that applied pressure to Congress to repeal DADT before a federal court ordered it to do so immediately.

After several failed attempts, Congress did pass legislation to repeal DADT and President Obama signed it last December. DOD officials said earlier this year they expect to satisfy a necessary certification requirement — certifying that repeal can take place without affecting military readiness — about mid-summer this year.

Servicemembers Legal Defense Network, which has been working to pass repeal, congratulated Witt and the ACLU on their “stunning victory.”

“Today’s events underscore once again the unjust nature of this discriminatory chapter in American history,” SLDN Executive Director Aubrey Sarvis said in a written statement. “Her case established a new rule of law in the Ninth Circuit, and her voice and story were pivotal in building support for the repeal of ‘don’t ask, don’t tell.’ This is not just a victory for Major Witt, it’s a victory for justice and for service members everywhere.”

Witt, 46, joined the Air Force in 1987 and moved quickly up the ranks, becoming a major in 1999, working with a unit that provided airborne intensive care units for wounded military personnel.

She received a number of commendations and even appeared on a recruitment poster.

Witt was discharged in 2006 for having acknowledged she had a relationship with a woman in Tacoma where Witt was based.

In the initial round of her lawsuit, she won — at the 9th Circuit Court of Appeals level— the right to a trial on the merits of her individual discharge under DADT.

During Witt’s trial, DOJ attorneys put on witnesses to discuss Witt’s relationship with a married civilian woman and argued that it was not just Witt’s sexual orientation but also her adulterous behavior to blame for her discharge. The government also noted that Witt had told at least two colleagues she was gay, thus putting them in an awkward position of either keeping silent to protect her or informing superior officers of Witt’s being in violation of the DADT law.

© 2011 Keen News Service. All rights reserved.

—  John Wright

Court refuses to suspend lawsuit challenging DADT

LISA LEFF  |  Associated Press

SAN FRANCISCO — A federal appeals court has denied the government’s request to suspend a lawsuit challenging the military’s ban on openly gay servicemembers.

The 9th U.S. Circuit Court of Appeals in San Francisco issued an order Friday, Jan. 28 requiring the Department of Justice to file papers by Feb. 25 arguing why the court should overturn a Southern California trial judge who declared the “don’t ask, don’t tell” policy unconstitutional.

Government lawyers asked the 9th Circuit earlier this month to set aside the case because the Pentagon was moving quickly to satisfy the steps Congress outlined last month when it voted to allow the ban’s repeal. A Justice Department spokeswoman said it had no comment Saturday.

The appeals court did not explain in its order why it rejected the request. In his State of the Union address, President Barack Obama said he expected to finalize the repeal and allow openly gay Americans to join the armed forces before the end of the year.

On Friday, the vice chairman of the Joint Chiefs of Staff told reporters that the training of officers and troops the Pentagon has said is a predicate to full repeal would begin in February.

The Log Cabin Republicans, the gay political group whose lawsuit challenging “don’t ask, don’t tell” persuaded District Court Judge Virginia Phillips in September to enjoin the military from enforcing the policy, had opposed the government’s effort to put the case on hold.

R. Clarke Cooper, the group’s president, said Saturday that while he thinks the Pentagon’s efforts are sincere, the case should proceed as long as gay servicemembers still can be discharged.

“We said all along to the government we would drop our case if they would cease all discharges and remove all barriers to open service,” Cooper said.

Cooper, an Army reserve officer, said he knew of at least one service member facing a discharge hearing next month, even as the Pentagon moves forward with its training plan.

“We are not questioning the implementation process. We recognize the need for a deliberative process for implementing proper training materials and guidances for leadership,” he said. “But when you have a servicemember going before a discharge panel, this is kind of a ‘left hand-right hand’ thing that is happening.”

—  John Wright

Prop 8 case sent to Calif. Supreme Court

LGBT advocates frustrated over delay

Lisa Keen  |  Keen News Service

A 9th Circuit U.S. Court of Appeals panel surprised many Proposition 8 observers Tuesday, Jan. 4 when it suddenly issued five documents relating to the case.

But there was no decision Tuesday in Perry v. Schwarzenegger, the landmark case testing whether voters in California violated the U.S. Constitution when they amended the state constitution to ban marriage licenses for same-sex couples.

The bottom line of the documents was that the three-judge panel that heard arguments in an appeal of the case punted a critical question regarding legal standing to the California Supreme Court.

The appellate panel said it would not rule on the constitutionality of Proposition 8 until it gets a ruling from the California Supreme Court as to whether Yes on 8 proponents of the initiative have an “authoritative” entitlement to represent the voters who passed the initiative in the appeal in federal court.

The announcement frustrated and disappointed many.

“It is frustrating that this will slow the case down, especially since there is nothing in California law that gives initiative proponents the power to force an appeal when the official representatives of the state have determined that doing so is not in the best interests of the state,” said Shannon Minter of the National Center for Lesbian Rights.

The development struck some as odd. It appears the federal court is asking a state court whether Yes on 8 has standing to appeal a lower federal court ruling that struck down Proposition 8.

“I don’t think it was necessary to ask the California Supreme Court to rule on that issue,” said Minter, “and I am disappointed the Ninth Circuit did so.” But Ted Olson, a lead attorney on the team challenging Proposition 8, said it’s not uncommon.

And it was not really a surprise to learn the panel is struggling with the question of standing. During oral argument on Dec. 6, all three judges seemed troubled by the idea that a state governor or attorney general could, in essence, acquire an ability to veto a measure passed by voters by simply refusing to defend a challenge to its constitutionality in court. The California constitution does not provide the governor or attorney general a right to veto voter-passed initiatives.

Both Judge Stephen Reinhardt, widely perceived to be the most liberal of the panel, and Judge Randy Smith, the most conservative, seemed concerned that the governor and attorney general’s refusal to appeal the district court decision “does not seem to be consistent” with the state’s initiative system. Judge Michael Hawkins expressed frustration during arguments that the panel might be prevented from rendering a decision about the constitutionality of Proposition 8 “so it’s clear, in California, who has the right to marry and who doesn’t.” The panel seemed prepared, on Dec. 6, to ask the California Supreme Court to weigh in on the issue — and it’s somewhat curious that they waited one month before actually doing so.

In its 21-page order to the California Supreme Court, the three-judge panel asked the state court to determine whether Yes on 8 proponents have “rights under California law … to defend the constitutionality of [Proposition 8] … when the state officers charged with the laws’ enforcement … refuse to provide such a defense.”

Olson, in a telephone conference call with reporters soon after the court released its order, said that, if the California Supreme Court determines that there is no authority under state law for Yes on 8 to have standing to represent voters in the appeal, the 9th Circuit would be bound to accept that determination. However, the ruling on standing could still be appealed to the U.S. Supreme Court, he said.

If the California Supreme Court determines Yes on 8 does not have standing and the 9th Circuit rules accordingly, then the decision of U.S. District Court Judge Vaughn Walker on Aug. 4 will become the law throughout California, making it possible for same-sex couples to obtain marriage licenses.

Judge Walker ruled that Proposition 8 violates the U.S. Constitutional guarantees to equal protection and due process. Although neither the attorney general nor the governor provided any defense for the initiative during the trial last January, Walker did allow Yes on 8 proponents to intervene in the trial as defenders of the measure. But the appeals panel indicated that standing in the district court does not necessarily mean Yes on 8 has standing to appeal.

If Yes on 8 does appeal a loss on the issue of standing to the U.S. Supreme Court, and the high court rules in its favor, it would then most likely send the case back to the 9th Circuit for a ruling on constitutionality.

Meanwhile, among its other documents Tuesday, the 9th Circuit panel issued a 16-page opinion that Imperial County, Calif., does not have standing to appeal the district court decision itself. The panel said it was denying the county’s claim for standing on different grounds than did Judge Walker. The panel held that, because the county simply administers the state’s marriage law, it does not have any “interest on its own” to defend. The county has 14 days in which to appeal the panel’s ruling on standing.

The panel’s formal question to the California Supreme Court is: “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.

“If California does grant the official proponents of an initiative the authority to represent the State’s interest in defending a voter-approved initiative when public officials have declined to do so or to appeal a judgment invalidating the initiative,” states the order, “then Proponents would also have standing to appeal on behalf of the State.

“This court is obligated to ensure that it has jurisdiction over this appeal before proceeding to the important constitutional questions it presents,” says the order, “and we must dismiss the appeal if we lack jurisdiction. The certified question therefore is dispositive of our very ability to hear this case.

“It is not sufficiently clear to us, however, whether California law does so,” said the panel. “In the absence of controlling authority from the highest court of California on these important questions of an initiative proponent’s rights and interests in the particular circumstances before us, we believe we are compelled to seek such an authoritative statement of California law.”

Today’s development will, of course, delay the 9th Circuit panel’s decision on the merits of the case — whether voters can withhold marriage licenses from gay couples while granting them to straight couples.

“Further delay in restoring the freedom to marry in California is a lamentable hardship on couples,” said Evan Wolfson, head of the national Freedom to Marry group. “But I am confident that we will regain the freedom to marry in California soon.”

NCLR’s Minter agreed.

“I am confident the California Supreme Court will hold that California law does not give initiative proponents any special power to override the decisions of the state’s elected representatives,” said Minter. “In the meantime, however, Proposition 8 remains on the books, and every day that goes by, LGBT people in California are denied the freedom to protect their families and express their love and commitment through marriage. This will delay,” he said, “but not deny, the day that Proposition 8 is gone for good.”

The full text of the order is below.

© 2011 Keen News Service. All rights reserved.

CA9Doc 292

—  John Wright

Justice Department appeals lesbian’s reinstatement to Air Force

Witt to serve openly while legal, political battles over DADT continue

GENE JOHNSON | Associated Press

SEATTLE — A lesbian flight nurse discharged under “don’t ask, don’t tell” policy barring gays from serving openly can rejoin the Air Force Reserve, even as the government appeals a judge’s ruling that returned her to the job, her lawyers said Tuesday, Nov. 23.

U.S. District Judge Ronald Leighton ruled in September that former Maj. Margaret Witt must be reinstated because her dismissal advanced no legitimate military goals and thus violated her constitutional rights.

The Justice Department appealed that ruling to the 9th U.S. Circuit Court of Appeals on Tuesday, its deadline for doing so.

But government lawyers did not ask the appeals judges to freeze the lower court’s ruling while the appeal proceeds — and Witt’s lawyers said that means she can be reinstated.

“I am thrilled to be able to serve in the Air Force again,” Witt said in a written statement released by the American Civil Liberties Union of Washington state. “The men and women in the unit are like family members to me, and I’ve been waiting a long time to rejoin them.”

Witt was suspended in 2004 and subsequently discharged after the Air Force learned she had been in a long-term relationship with a civilian woman. She sued to get her job back.

Leighton initially upheld her firing, but in 2008 a three-judge 9th Circuit panel said military members could not be discharged under “don’t ask” unless their dismissal furthered military goals such as troop morale or unit cohesion. It sent the case back to Leighton, who ruled that Witt’s firing actually hurt morale in her unit.

If Witt is reinstated, she would be serving openly at a time when the military’s policy on gays is in disarray. President Barack Obama and Defense Secretary Robert Gates want to end the ban, but say it should be done through Congress, not the courts. A federal judge in California has declared the 1993 “don’t ask, don’t tell” law unconstitutional — a ruling the Justice Department is also appealing — and in the meantime, the Pentagon has issued new guidelines that have drastically cut the numbers of gays being dismissed under the policy.

The Pentagon plans to release a monthslong study Tuesday, Nov. 30 on how lifting the gay service ban would affect the armed forces.

The Justice Department did not immediately say why it did not seek a stay of Leighton’s ruling. The Air Force Reserve at Joint Base Lewis-McChord south of Seattle, where Witt was based, did not immediately return a message seeking comment.

“It’s indicative of the effort the White House is making to thread the needle on ‘don’t ask, don’t tell,”’ said Chris Neff, deputy executive director of the Palm Center, a pro-repeal think tank based at the University of California, Santa Barbara. “They’re holding the line that they need to continue to appeal these, but they are taking an extra measure to address this policy and try to make it moot. This is the first White House that has really made an effort to keep gays in the military.”

Despite being excited to rejoin the Air Force, Witt said she was disappointed the government was appealing at all.

Justice Department spokeswoman Tracy Schmaler said the department was simply defending the law, as it historically does when acts of Congress are challenged. White House Press Secretary Robert Gibbs insisted that the appeal shows why it’s important for the Senate to repeal the “misguided policy” quickly — before a new Congress takes over, with a slimmer Democratic majority in the Senate.

“This filing in no way diminishes the president’s — and his administration’s — firm commitment to achieving a legislative repeal of DADT this year,” Gibbs said in an e-mailed statement.

“Don’t ask” prohibits the military from asking about the sexual orientation of service members, but allows the discharge of those who acknowledge being gay or are discovered to be engaging in homosexual activity.

—  John Wright