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

What’s on tap for 2012?

Court cases on both coasts will impact marriage equality, while November elections could mean continued progress legislatively — or a time of backsliding

Inside-Cover

WAITING GAME | Members of the anti-Prop 8 legal team, from left, Therese Stewart, Chad Griffin, David Boies, Ted Butros and Ted Olson, speak during a news conference after a hearing in the 9th Circuit Court of Appeals on Dec. 6, 2010, in San Francisco. Thirteen months later, the 9th Circuit judges are expected to issue opinions any day now on whether Prop 8 proponents have legal standing to appeal the trial court ruling, and whether Judge Vaughn Walker was correct in declaring the anti-gay-marriage amendment unconstitutional. (Eric Risberg/Associated Press)

Lisa Keen  | Keen News Service
lisakeen@mac.com
Significant events are crowding the calendar for 2012, and each promises considerable drama and suspense for the LGBT community.
Here are the 10 most important, from a national perspective, to keep an eye on:

• The next decisions on Proposition 8: A three-judge panel of the 9th Circuit U.S. Court of Appeals could release its opinions any day now. That’s “opinions,” plural.
Before the panel can rule on the constitutionality of California’s law banning marriage for same-sex couples, it must decide whether the Yes on 8 coalition has legal standing to appeal the federal court ruling that Prop 8 is unconstitutional, and it must decide whether there is any justification for Yes on 8’s request that the lower court decision be vacated.
The list of possible outcomes in Perry v. Brown — the case brought by the American Foundation for Equal Rights with famed attorneys Ted Olson and David Boies leading the charge — is mind-boggling. Whatever the results, any or all aspects could be appealed to the U.S. Supreme Court immediately or they could be appealed to a full 9th Circuit bench and then to the Supreme Court.
But the panel’s decision will almost certainly have political impact, too. Not only will it affect the momentum of the marriage equality movement, it will almost certainly become fodder in the presidential campaigns.

• The decision, on appeal, in DOMA: A three-judge panel of the 1st Circuit U.S. Court of Appeals will hear oral arguments, perhaps as soon as early February, in a powerful challenge to the federal Defense of Marriage Act’s denial of federal benefits to same-sex married couples.
The challenge, referred to most often as Gill v. OPM, is actually three consolidated cases, two brought by Gay & Lesbian Advocates & Defenders (GLAD) and one by the state of Massachusetts.
While there are other challenges under way to DOMA, this is the “big guns” challenge and the one most likely to reach the U.S. Supreme Court first. And while there is no deadline by which the panel must render its decision, it is likely to turn out one by year’s end.
Then, as with Proposition 8, the case could go to the full circuit court on appeal or straight to the Supreme Court. And, if the appeals court decision is rendered before the November elections, it will almost certainly provoke debate on the presidential campaign trail.

• Tammy Baldwin’s historic Senate bid: U.S. Rep. Tammy Baldwin is not the first openly gay person to run for U.S. Senate, but she’s the first who has a real chance of winning.
The daily Capital Times is already referring to her as the “likely” Democratic nominee to fill the seat being vacated by Democrat Herb Kohl. She doesn’t have a challenger for the nomination. But she will have a very tough battle against whomever the Republicans put on the ballot.
That’s because the battle will be for more than just one seat in the powerful U.S. Senate, which currently has a breakdown of 53 in the Democratic Caucus and 47 in the Republican. It will be part of a multi-state slugfest between the parties over control of the chamber, the Congress and the nation’s laws.

• The fight for the Senate: Polls at the moment indicate voters are inclined to vote for Democrats over Republicans next November. But that sentiment is not providing a large margin — one or two points —  and it’s too soon to guess who the voters will blame for what 11 months from now.
But some Senate races — in addition to Tammy Baldwin’s — could have big consequences for LGBT voters.
In Virginia, a pro-gay former governor, Tim Kaine, will likely be pitted against an anti-gay former senator, George Allen. In Massachusetts, a pro-gay challenger, Elizabeth Warren, will almost certainly be the Democrat facing incumbent Scott Brown, whose attitude toward the community has been much less friendly.
And at least seven other states are expected to have competitive races for the Senate.

• Counting the “Gay Caucus”: U.S. Rep. Barney Frank, D-Mass., will be starting his 40th year in Congress when the House reconvenes Jan. 17. And it will be his last.
Frank announced last year that he is retiring at the end of his term. When he does, the clique of four openly gay members of Congress — Frank, Baldwin and Reps. Jared Polis and David Cicilline — will shrink by one. If Baldwin fails to win a Senate seat, it could shrink by half.
But there are prospects for adding members. Openly gay Wisconsin Democratic Assemblymember Mark Pacon is running for Baldwin’s U.S. House seat. And there are three other openly LGBT candidates for the U.S. House this November: Marko Liias from Seattle, Mark Takano from Riverside, Calif., and Kyrsten Sinema from Phoenix.
So, the number of openly gay members of Congress could go from four to as low as two (though zero is, technically, possible) to as high as seven. But no one will have the seniority and clout that Frank has had — and has used — to advance pro-gay measures.

• On hold, and on defense, in Congress: Pro-LGBT bills — such as efforts to repeal DOMA and pass the Employment Non-Discrimination Act — are not likely to see much action in 2012. But anti-gay measures might.
Why? Because it’s an election year and Republicans still control the House. And supportive Democrats will not be inclined to push controversial legislation during an election year, because it can detract from the focus on jobs and the economy, where most voters want focus right now.
Republicans, on the other hand, have often used hostile measures aimed at gays during election years as a way of putting Democrats on the spot with voters generally and gays specifically.

• Ballot battles abound: There will be important LGBT-related ballot measures before voters in several states this year.
North Carolina and Minnesota will vote on whether to ban same-sex marriage through amendments to their state constitutions. Voters in Maine will decide whether to strike down their existing ban on same-sex marriage.
LGBT activists in Washington State are gathering signatures to put a measure on that state’s ballot to gain marriage equality. A small group in California has until May 15 to gather more than 800,000 signatures to put a measure on the ballot there to repeal Proposition 8.
And the California Attorney General is expected to announce by Jan. 9 whether opponents of a new bill to include information about LGBT figures in history as part of the public school curriculum can begin circulating petitions to get a repeal measure on the ballot there.
All of these have the potential to be big, expensive and consequential battles.

• Fight for freedom of religion: The right-wing Alliance Defense Fund and others have a concerted effort under way in the courts to undermine laws prohibiting discrimination based on sexual orientation and gender identity.
Their strategy is to argue that people who discriminate against LGBT people do so because their religious beliefs require them to do so. Their question to the court is, “What rules? The First Amendment guarantee of free exercise of religion or the equal protection clause that says all citizens should be treated equally under the law?”
One case has already reached the U.S. Supreme Court and failed, but other cases — many other cases — are winding their way through nearly every circuit in the country. And their outcomes have the potential to chip away at the strength of the nation’s legal mandate that all people be treated equally.

Tammy-and-Obama

U.S. Rep. Tammy Baldwin, left, President Barack Obama, right

• A fight for the White House: The difference for LGBT people between having President Barack Obama in the White House and President George W. Bush has been stark. So the consequences of November’s presidential election will also be profound.
Either Obama stays, and things continue to improve — in law and in society’s attitudes — or a new president is elected from a field of Republicans who seem, at times, to be vying for the mantle of most gay-hostile candidate.
In the latter case, LGBT people can expect progress to halt or backslide.

• Ah, the unpredictable: One of the bigger LGBT stories of 2011 happened in February, and it was one nobody expected: The Obama administration announced it considered DOMA unconstitutional and would not argue for its defense in most cases.
Another big story that no one expected: The Obama administration announced a major new diplomatic mission to push for protection of human rights for LGBT people around the world.

And given that Rep. Frank said in January 2011 he’d run for re-election in 2012, it was a surprise, in November, when he announced that he would not. As Frank pointed out, circumstances change.

Circumstances change, things change, people change. And often, they change each other.

But history marches on through time, and only in retrospect can any trajectory be certain as to where it’s going.

© 2012 by Keen News Service. All rights reserved.

This article appeared in the Dallas Voice print edition January 6, 2012.

 

—  Kevin Thomas

California Supreme Court to issue ruling Thursday on question of standing in Prop 8 case

The passage of Proposition 8 sparked angry protests around the country

The California Supreme Court today announced that it will issue its opinion tomorrow, Thursday, Nov. 17, on whether supporters of Proposition 8 have standing to appeal a trial court ruling that the voter-approved amendment banning same-sex marriage is unconstitutional, according to this report at MetroWeekly.com.

Voters passed Prop 8 in the November 2008 election, 52 percent to 48 percent, just months after the state Supreme Court issued a ruling saying that a law prohibiting same-sex marriage in California violated the state’s Constitution. Prop 8, however, amended the California Constitution, adding a clause declaring that only marriage between one man and one woman is valid or recognized there.

The vote sparked widespread protests, and opponents soon filed a federal lawsuit, Perry v. Schwarzenegger, claiming that Prop 8 violates the 14th Amendment guarantees of due process and equal protection in the U.S. Constitution. Then-Attorney General Jerry Brown chose not to defend the case in court, saying he, too, believed Prop 8 was unconstitutional. Then-Gov. Arnold Schwarzenegger said he supported the lawsuit because it asked important constitutional questions that needed to be answered, but none of the other state officials named as defendents were willing to defend the case in court, either.

At that point, a group called ProtectMarriage.com, the official proponents of Prop 8 in the election, and a second group called the Campaign for California Families both filed motions to intervene to defend the amendment. District Court Judge Vaughn Walker allowed ProtectMarriage.com to intervene but denied the second group’s effort. Imperial County filed a motion to intervene to defend Prop 8, but their motion was also denied because the deadline for filing had passed.

In August 2010, Walker ruled in favor of the plaintiffs in the case, declaring Prop 8 unconstitutional. He placed the ruling on hold, however, pending appeal to the 9th Circuit Court, a stay which the 9th Court later extended. ProtectMarriage.com appealed Walker’s ruling to the 9th Circuit, and again Brown and Schwarzenegger refused to defend the amendment in court. And this time, Walker’s ruling cast doubt on whether ProtectMarriage.com actually had legal standing to appeal his ruling.

A three-judge panel from the 9th Circuit Court heard oral arguments on the case on Dec. 6, 2010 and a month later, on Jan. 4, 2011, the 9th Circuit judges sent the request to the California Supreme Court, asking for an opinion on whether ProtectMarriage.com had legal standing to appeal Walker’s ruling.

Regardless of how the California Supreme Court rules tomorrow on the question of standing, the case is still a long way from settled. Whichever way the three-judge 9th Circuit panel eventually rules on the constitutionality of Prop 8, those on the losing side of that argument will likely appeal first to the full 9th Circuit Court, and from there to the U.S. Supreme Court.

—  admin

Dan Woods, Alex Nicholson to speak at Log Cabin Republicans National Convention in Dallas

Log Cabin Dallas President Rob SchleinROB SCHLEIN | President, Log Cabin Republicans Dallas

Log Cabin Republicans are celebrating many accomplishments this year, but none so much as the defeat of “don’t ask, don’t tell.” From our victorious ruling in Log Cabin Republicans v. United States to securing dozens of GOP votes in Congress to repeal the policy, our members can be proud of the role Log Cabin is playing to end the ban on open service.

Join us in Dallas April 28-May 1 for an insider perspective on how it happened, and where we go from here.

The Log Cabin Republicans National Convention & Liberty Education Forum Symposium are known for bringing together an impressive slate of speakers — and 2011 promises to continue that proud legacy.

Dan Woods is a partner at White & Case and the lead attorney in Log Cabin Republicans v. United States. He will be speaking about the trial verdict which turned the tide in the fight to end DADT, and the ongoing fight at the 9th Circuit Court of Appeals. For his work on our case, Woods has been named 2010 Attorney of the Year by The Recorder, and is the recipient of the 2011 California Lawyer Attorney of the Year Award.

Alex Nicholson served as Log Cabin Republicans named plaintiff in the suit against DADT, and his testimony was critical to our success. Alex is also the executive director of Servicemembers United, one of the core advocacy groups whose tireless efforts won votes in Congress for repeal and whose work continues as we look ahead to implementation and life after the ban. Alex is a past winner of Log Cabin’s “Uncommon Courage” award and is always a favored speaker at our events.

Last but not least, Log Cabin Republicans own executive director, R. Clarke Cooper, will join the panel with his perspective both as Log Cabin’s lead lobbyist for legislative repeal, but also providing insight as a currently serving captain in the Army Reserve. Little known fact: Clarke was actually in uniform when Judge Virginia Phillips’ injunction against DADT went into effect. Join us in Dallas to hear the reactions of his fellow servicemembers to the verdict!

That’s just a small taste of what we have in store. Between now and April 28, Log Cabin Republicans national headquarters will be releasing more information about the 2011 Log Cabin Republicans National Convention & Liberty Education Forum Symposium — but don’t wait! The 2010 National Dinner sold out early, and you want to secure your place at what promises to be headline news in the fight for a stronger, more inclusive Republican Party.

*Important Note: a special student rate of $200 has been added to the registration page. Contact cberle@logcabin.org for any questions regarding eligibility.

Act now for Log Cabin Republicans special Convention rate of $149/night at the famed Hilton Anatole in Dallas. To take advantage of this rate, call 1-800-HILTONS and mention Log Cabin Republicans. For any questions, contact cberle@logcabin.org. See you in Dallas!

—  admin

We don’t all have the luxury of time

The American Foundation for Equal Rights, the organization behind the lawsuit challenging the constitutionality of California’s Proposition 8, has asked the 9th Circuit Court of Appeals to lift its injunction and allow legal same-sex marriages to resume in California as the lawsuit moves through the appeals process.

As you probably remember, early last year federal District Judge Vaughn Walker ruled that Prop 8 — an amendment to the California Constitution approved in a 2008 voter referendum — violates the U.S. Constitution’s guarantees of equal protection. California state officials said they would not appeal the ruling because they, too, believed Prop 8 to be unconstitutional. But the folks who backed the amendment in the first place and who were the only ones to try to defend it in Walker’s court, did appeal the decision to the 9th Circuit, which issued an injunction that is keeping same-sex marriages from resuming under Walker’s ruling. But in addition, the 9th Circuit, unsure whether the Prop 8 supporters even have legal standing to appeal, have asked the California Supreme Court to weigh in on the question of standing.

And therein lies the problem. The California Supreme Court justices have said they will issue an opinion on standing, but they aren’t in any hurry to do it. In fact, they don’t plan to issue any decisions until sometime after the summer.

And that just isn’t soon enough for some people, and that’s why AFER is asking the 9th Circuit to lift the injunction.  We don’t all have the luxury of time, and that includes 78-year-old Ed Watson of Palm Springs.

Watson has joined in Courage Campaign’s efforts to get the injunction lifted by writing this letter and making the video above. I think he says it all:

“Yesterday, I found out the California Supreme Court denied a motion to speed up the Prop 8 trial. They’re going to take their summer recess and come back in around 6 months or so. It must be nice for them.

“The thing is, I am 78 years old, and I have Alzheimer’s disease. I have been with my partner, Derence, for over 40 years. And if the courts drag this out for months and months, I fear I will, God forbid, lose the ability to recognize my beloved Derence when he gets on his knee to propose to me.

“I can’t afford that, and Derence deserves better. That’s why I agreed to be named in Courage Campaign’s amicus curiae letter to the 9th Circuit, asking that the stay be lifted so I can at least have my dignity on our wedding day.

“Please watch this video of my and my partner Derence, then co-sign our letter to the 9th Circuit, begging them to lift the stay while the California Supreme Court drags its feet.

“If the California Supreme Court is going to take its time, then we deserve the dignity of marriage … before I can’t remember what marriage is.”

“Humbly, Ed Watson, Palm Springs, CA.”

—  admin

Calif. Supreme Court agrees to rule on whether Prop 8 supporters have standing to appeal

LISA KEEN | Keen News Service

The road to marriage equality in California just got a little longer.

The California Supreme Court said today it would make ruling on whether Yes on 8 proponents have authority, under California law, to appeal a federal court ruling that the initiative is unconstitutional.

The announcement, at 4:20 p.m. Central time today, means the California court will soon hear arguments in the landmark Perry v. Schwarzenegger case. But the question will be a procedural one only: whether there is any authority under California law that would provide Yes on 8 proponents with standing to defend Proposition 8 in a federal appeals court.

The court’s brief announcement said it would hear arguments on an expedited schedule and asked that the first briefs be due March 14 and that oral argument take place as early as September.

Once the California Supreme Court decides whether state law provides any right to Yes on 8 to represent voters on appeal, the 9th Circuit U.S. Court of Appeals panel will then make its final determination as to whether Yes on 8 has standing to appeal. And, if the 9th Circuit says Yes on 8 does have standing, it will also rule on the constitutionality of Proposition 8.

The question before the California Supreme Court was whether there is any authority under California law that would enable Yes on 8 proponents to represent voters who approved Proposition 8. The answer mattered to the 9th Circuit Court of Appeals panel. Without any authority under state law, the appeals panel suggested, the group might not have any “standing” at all to appeal the decision. If a party has “standing,” they are sufficiently affected by a conflict to justify having a court hear their lawsuit or appeal on the matter.

When the legal team of Ted Olson and David Boies filed a legal challenge to California’s Proposition 8 in federal district court, the state, under Gov. Arnold Schwarzenegger and Attorney General Jerry Brown, had standing to defend the law. But neither provided a defense and, instead, the Yes on 8 coalition that campaigned for the initiative did so.

When the district court found Proposition 8 unconstitutional, the state officers said they would not appeal the decision, so Yes on 8 once again sought to defend the law, this time in the federal appeals court. But both Schwarzenegger and Brown urged the 9th Circuit not to accept the appeal, saying the best thing for California was to abide by the district court ruling.

So, when the 9th Circuit panel heard oral arguments on the appeal last December, one of the first and most pressing issues it had to wrestle with was whether Yes on 8 still had “standing” to bring the appeal when the state government had decided it wanted to honor the district court decision.

What bothered the panel was their belief that the state officers — Schwarzenegger and Brown — were acquiring veto power by simply refusing to defend a voter-approved law with which they disagreed.

The panel asked the California Supreme Court to say whether there might be some authority under state law that would provide Yes on 8 with standing to bring the appeal.

The legal team challenging Proposition 8, led by Ted Olson and David Boies, filed briefs with the California Supreme Court, saying the state court should not provide such a determination because the standing issue in a federal appeals court is essentially a matter of federal law.

© 2011 by Keen News Service. All rights reserved.

—  John Wright

WATCH: Lubbock station flubs DADT; Texas Tech activist Nonnie Ouch says ‘It Gets Better’

Nonnie Ouch

Last week, the U.S. Court of Appeals for the Ninth Circuit put a stay on a lower court’s ruling allowing gays and lesbians to serve openly in the military.

Explaining the stay,  Fox 34 in Lubbock said, “As of right now anyone who is gay and in the military must keep that sexual preference under wraps.”

Nonnie Ouch, a Texas Tech student from Dallas, does help explain any confusion in her “It Gets Better” video below. She describes Lubbock as “the second most conservative city in the country.”

Getting sexual orientation wrong is the least of the Fox story’s problems. They’re a little fuzzy on the “don’t ask, don’t tell” issues.

For example, they quote a Texas Tech law professor saying he had a long, distinguished career as a JAG and knows “don’t ask, don’t tell” quite well.

So well, in fact that he claimed that he defended the policy in the 1980s. Wow. A whole decade before anyone even dreamed up the discriminatory DADT policy, this “expert” was out there defending it. He must really, really like it.

Or maybe not so much because the professor calls the policy an anachronism.

But the military needs time to work out some privacy issues, he says. Well, it seems the only privacy that’s been violated is the privacy of gay and lesbian military personnel. Their privacy is regularly invaded and they are thrown out.

The former JAG and legal expert Fox quotes thinks the military, not the courts, should be making the policy. Interesting since it was Congress who created the policy that was signed into law by the president. And I don’t remember anyone criticizing Congress or President Bill Clinton about interfering with military policy when they instituted it. And isn’t the president the commander-in-chief?

Ouch’s comments to Fox are a lot clearer than those of the policy’s sort-of defender who doesn’t seem to like the policy much anymore.

“It’s a huge deal, I have friends that are serving in Afghanistan right now that are gay and I couldn’t wait to tell them the news,” she told the Fox station before the stay was placed on the ruling.

In her video, Ouch tells gay youth that if they can get by in Lubbock, you can get by anywhere else in the country.

—  David Taffet

BREAKING: Judge orders military to halt enforcement of ‘don’t ask don’t tell’

A federal judge in California has issued an injunction halting enforcement of “don’t ask don’t tell.”

Judge Virginia Phillips on Tuesday ordered the U.S. military “immediately to suspend and discontinue any investigation, or discharge, separation, or other proceeding, that may have been commenced” under DADT.

Phillips previously ruled that DADT violates servicemembers’ rights to due process and free speech. However, she delayed issuing an injunction in the lawsuit brought by the Log Cabin Republicans.

The Department of Justice now has 60 days to appeal the decision but has not said whether it will do so. In the meantime, the DOJ could also seek a stay of the decision from the U.S. Circuit Court of Appeals for the Ninth Circuit. DOJ has no obligation to appeal the ruling and could simply allow it to stand.

“This order from Judge Phillips is another historic and courageous step in the right direction, a step that Congress has been noticeably slow in taking,” said Alexander Nicholson, executive director of Servicemembers United and the sole named veteran plaintiff in the case along with the Log Cabin Republicans. “While this is certainly news to be celebrated, we would also advise caution in advance of a potential stay from the Ninth Circuit. If the appellate court wishes to put itself on the right side of history, however, it will allow this sound and long-over due decision to remain in effect.”

Christian Berle, acting executive director of Log Cabin Republicans, said in the wake of Phillips’ initial ruling, the injunction was the “only reasonable solution.”

“These soldiers, sailors, airmen and marines sacrifice so much in defense of our nation and our Constitution,” Berle said. “It is imperative that their constitutional freedoms be protected as well. This decision is also a victory for all who support a strong national defense. No longer will our military be compelled to discharge servicemembers with valuable skills and experience because of an archaic policy mandating irrational discrimination. The United States is stronger because of this injunction, and Log Cabin Republicans is proud to have brought the case that made it possible.”

Dan Woods, one of the attorneys representing Log Cabin, said he was “extremely pleased” with the injunction.

“The order represents a complete and total victory for Log Cabin Republicans and reaffirms the constitutional rights of gays and lesbians in the military who are fighting and dying for our country,” Woods said.

Other statements on Tuesday’s order:

Aaron Tax, legal director, Servicemembers Legal Defense Network:

“We applaud Judge Phillips for putting an immediate stop to all investigations and discharges under this unconstitutional law. As explained by the judge, this order applies across the military. This order bars the Department of Defense from enforcing or applying the ‘Don’t Ask, Don’t Tell’ law against any person under its command. We have clients under investigation and facing discharge right now. We’ll be monitoring each case over the coming days. This order will likely be appealed by the Justice Department and brought to the U.S. Court of Appeals for the 9th Circuit where her decision may well be reversed. The law still has a chance of being repealed in the lame duck session of Congress. Service members must proceed safely and should not come out at this time. Anyone in the armed forces with questions or concerns should call our hotline.”

—  John Wright

What now with Prop 8?

Appeals court has stayed Walker’s ruling, but the case has been fasttracked as appeals over standing, merits work through the system

DAVID TAFFET  |  Staff Writer  taffet@dallasvoice.com

Chris Stoll
Chris Stoll

The three-judge panel of the 9th Circuit Court of Appeals in California that stayed the lower court’s decision this week ordered the Proposition 8 supporters to defend their standing in the case as it moves up on appeal.

Attorneys following the case closely all called the stay disappointing but were encouraged by the court questioning the standing of the defendants and the fast track timetable.

Chris Stoll is senior staff attorney for National Center for Lesbian Rights, a San Francisco-based organization that filed a brief in the Prop 8 case. He said that although it was disappointed that same-sex couples could not start getting married immediately, he was encouraged that the court fast-tracked the hearing to December and asked both sides to address standing.

Jennifer Pizer, National Marriage Project director for Lambda Legal, said she, too, was not surprised by the stay.

“It’s common for judges to maintain a status quo,” Pizer said.

She said that the stay does not indicate the merits of the case.

In fact, it is quite the opposite, she said, as indicated by the court directing the defendants to justify their standing in the case.

Ken Upton, senior staff attorney for Lambda Legal’s South Central Regional office in Dallas, said that the stay “probably isn’t going to matter much” in the long run because the court put the case “on a really short docket.”

Upton said he liked the schedule.

The court will hear the case after the election, but before a new governor takes office in California.

A different governor could decide to defend the case, Upton noted.

Federal District Judge Vaughn Walker ruled last week that there was no basis to continue a stay of his Aug. 4 ruling declaring Prop 8 unconstitutional. But he declined to lift his stay early, instead saying that it would expire Aug. 15 at 5 p.m., as he had originally ordered.
That gave the 9th Circuit court time to consider issuing a its own stay.

Gov. Arnold Schwarzenegger and Attorney General Jerry Brown had agreed to abide by the lower court’s ruling and said the case should not be appealed.

Since the state was the defendant in the case, the standing of the interveners, the Yes on 8 group that had campaigned for the amendment’s passage and that actually defended the case in court, is now in question.

Stoll explained that in a normal schedule for the 9th Circuit, final briefs might have been filed in December with oral arguments heard in February or later.

With extensions, the case might not have come before the appellate court until well into the spring.

While many cases are decided within weeks, the court is on no deadline. In a more complicated case like this, the decision could take months, Stoll said.

Two cases involving standing will be heard as well as the appeal of the actual ruling.

Officials with Imperial County in southeastern California have filed to defend Proposition 8 on behalf of the state.

And the Yes on 8 group, also known as the interveners, who defended the lower court case are appealing the judge’s decision. But their standing is also being questioned.

Stoll said that traditionally conservatives in the higher courts take a narrower view of standing than liberals.

Jenny Pizer
Jenny Pizer

“In general, they don’t want to be giving opinions that would be advisory and don’t have an impact on real people,” he said. “If the state is willing to abide by the trial court’s opinion, should the courts hear the case?”

When the court rules, presumably it will address standing first. If they find that the interveners and Imperial County officials do not have standing, Stoll said he didn’t expect any further discussion of the case by the court.

If they rule that either of the interveners have standing, then they will rule on the constitutional question.

To show that they have standing to appeal, the interveners “need to show they’ve been harmed to make a federal case out of it,” Pizer said.

“When a law is challenged as being unconstitutional, they can’t just stand up and say, ‘But we really, really want it.’ That works on Fox TV, but not in court.”

However, if the appeals court rules the interveners do not have standing, they can appeal to the U.S. Supreme Court. If that court finds that they do have standing, the case would return to the Circuit Court for a ruling on the legal issues.

If the appellate court finds that the interveners do have standing, then that court will rule on the merits of the case, deciding whether Judge Walker’s interpretation of law was correct and if Proposition 8 is illegal under California’s constitution.

When the three-judge panel that will hear the case makes that decision, either side can petition for the case to be heard “en banc,” which means by the full court. But in the 9th Circuit court, it means a panel of 11 judges chosen randomly from among the 29 on the court.

The ruling by the 11-member panel could then be appealed to the U.S. Supreme Court.

Pizer sees the expedited hearing schedule and the court’s decision to issue the stay as a compromise made by the court.

“The stay keeps things simpler,” she said.

Pizer said that until the hearing, both sides would be writing briefs. The defense will be arguing that they have standing in the case and that in his decision Judge Walker misread the law.

Ted Olson and David Boies, the two high-profile attorneys representing the plaintiffs in the case, will argue that the interveners have no standing since they are not the ones issuing marriage licenses. Their briefs will argue that the defendants presented no credible witnesses or evidence and the only ones harmed by Proposition 8 are same-sex couples waiting to get married.

Pizer said that the LGBT community should use this time wisely until the case is heard.

“We need to be educating our neighbors about why Judge Walker is correct,” she said.

This article appeared in the Dallas Voice print edition August 20, 2010.

—  Michael Stephens

Letters • 08.20.10

Why do we fight for a word?

This week the 9th Circuit Court of Appeals handed down its decision to halt the granting of same-sex marriage licenses in California until it considers the constitutionality of the state’s same-sex marriage ban.

So, here we go with round 2, or 200, or 2,000 — I have long ago stopped counting and stopped worrying about “The Battle.”

You see, I don’t believe the battle was fought correctly and therefore lost its direction.

Marriage. Really? Why are we so determined to have a word?

That’s all it really is, a word. I really thought the fight was for rights. Is getting “married” the only way to do that? Aren’t we worried about legal rights?

Seems to me we are. I mean after all, we are conducting our fights in the legal system.

How far along do you think we would be if perhaps instead of focusing on the word we focused on the prize — equal rights. Give them the word; give me the rights.

You can call the process established to grant the rights whatever — civil union, partnership agreement, legal arrangement or supercalifragilisticexpialidocious. I don’t see where that matters.

Also, just think of the possible additional troops we could recruit — straight couples that also desire the rights but don’t want the whole “married” thing.

The more the “marry-er,” as they say.

What does matter, at least in my opinion and world, is that I can make medical decisions for my partner when needed (or hell, just be able to see him in the hospital), that we can receive the retirement or social security benefits of the other just the same as any spouse, that we can buy property together and that property passes to either of us at the death of the other — you know, the important things, the rights.

I am all in for that fight, but not this word fight. Honestly I have to admit, I am not a fighter at heart so the thought of a tougher battle to achieve the goal is very unattractive to me.

So, hate me for being a man who is gay and doesn’t want to be in this battle.
It is your right.

David Dupuy
Dallas


Touched by TCC’s  national anthem

Last week I was driving out to DFW Airport very early in the morning, just before 7 a.m. I tuned my car radio to KEOM FM 88.5, which is the Mesquite Independent School District station, which mainly plays a format of 1970s and ’80s music.

Well they had just signed on for their broadcast day and played what I thought was one of the most beautiful renditions of the national anthem, “The Star-Spangled Banner,” that I had ever heard.

It was so good, I wanted to know who performed it.

So I called the morning station DJ, thinking that it must have been one of the military academies or the Mormon Tabernacle Choir.
Imagine my sheer delight to learn that it was Dallas’ own Turtle Creek Chorale.

It was truly magnificent. If you have never heard the TCC’s performance of the national anthem, make sure you make the effort to do so.

Bravo gentlemen!

Jay Narey
Dallas

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This article appeared in the Dallas Voice print edition August 20, 2010.

—  Michael Stephens