BREAKING: Judge denies government’s request to resume enforcement of ‘don’t ask don’t tell’

As expected, a federal district judge in California on Tuesday denied the government’s request to delay her injunction from last week halting the military’s enforcement of “don’t ask don’t tell.”

The Associated Press reports:

U.S. District Judge Virginia Phillips issued her ruling Tuesday after saying the government had not proven that her order would harm troops or impede efforts to implement new military regulations to deal with openly gay troops.

Justice Department officials say the Obama administration will appeal to the appellate court in San Francisco.

The military has promised to abide by her order as long as it remains in place.

Phillips declared the “don’t ask, don’t tell” policy unconstitutional Sept. 9. Under the 1993 law, the military cannot inquire into service members’ sexual orientation and punish them for it as long as they keep it to themselves.

Aubrey Sarvis, executive director of the Servicemembers Legal Defense Network, issued the following statement in response to Phillips decision Tuesday to deny the government’s request:

“By the judge keeping the injunction in place, lesbian and gay service members are protected another day, but the uncertainty has not gone away. The Department of Justice will immediately ask the 9th Circuit to stay the injunction. We’re talking about the careers of patriots, people who are on the frontlines serving our country – some of whom are highly decorated – and the court needs to keep the injunction in place. As the DOJ fights to keep this unconstitutional and oppressive law, we are monitoring active-duty clients’ cases and fielding calls every day to our hotline. During this interim period of uncertainty, service members must not come out. Our service members need finality. Given the uncertainty in the courts, we urge the Senate to act swiftly next month on repeal when they return to Washington.”

Below is the full text of Phillips’ ruling:

LCR v USA – ORDER Emergency Stay Denied

—  John Wright

Prop 8 backers slam trial judge in urging appeal

Marriage ban sponsors call Vaughn Walker’s consideration of evidence ‘egregiously selective and one-sided,’ accuse him of ‘willful’ disregard

LISA LEFF  |  Associated Press

SAN FRANCISCO — Backers of California’s same-sex marriage ban urged a federal appeals court to overturn the trial judge who struck down Proposition 8 by arguing late Friday, Sept. 17 that his consideration of evidence was “egregiously selective and one-sided.”

In written arguments to the 9th U.S. Circuit Court of Appeals, lawyers for the ban’s sponsors alleged that Chief U.S. Judge Vaughn Walker “quite willfully” disregarded a 1972 U.S. Supreme Court precedent and other relevant information when he decided the voter-approved measure was an unconstitutional violation of gay Californians’ civil rights.

“The district court based its findings almost exclusively on an uncritical acceptance of the evidence submitted by Plaintiffs’ experts, and simply ignored virtually everything — judicial authority, the works of eminent scholars past and present in all relevant academic fields, extensive historical and documentary evidence — that ran counter to its conclusions,” they wrote in their 134-page opening brief.

Lawyers for the two couples who successfully sued in Walker’s court are due to file their responses next month. A three-judge 9th Circuit panel has scheduled oral arguments in the case for the first week in December and put Walker’s order requiring the state to issue marriage licenses to same-sex couples on hold until it renders its own decision.

The court papers filed Friday contained unbridled criticism of Walker’s handling of the first federal trial to examine if the U.S. Constitution prevents states from limiting marriage to a man and a woman.

The appealing attorneys, who called two witnesses compared to 18 for the plaintiffs, asked the 9th Circuit to ignore the trial testimony on which Walker laboriously based his opinion, calling it “unreliable and ultimately irrelevant” to whether Proposition 8 passes constitutional muster.

“Having blinded itself to the genuine animating purpose of marriage, the district court was obliged to offer a different rationale for the institution, presumably one that is entirely indifferent to the gender of the spouses,” they wrote.

They also characterized as defamatory the judge’s conclusion that “moral disapproval” of gay men and lesbians was the main reason voters passed Proposition 8 in November 2008.

“The district court decision is an attack on the many judges and lawmakers and millions of Americans who rightly and reasonably understand that marriage is the unique union of a man and a woman,” said Alliance Defense Fund attorney Brian Raum, who is part of the legal team fighting to uphold Proposition 8. “The Hollywood-funded opposition wants to impose — through a San Francisco court — an agenda that America has repeatedly rejected.”

American Foundation for Equal Rights President Chad Griffin, whose organization organized and funded the lawsuit that led to Walker’s ruling, said he remains confident that it would be upheld in the 9th Circuit and ultimately, the U.S. Supreme Court.

“The fact remains that Proposition 8 is unconstitutional, as was proven conclusively and unequivocally through a full federal trial,” Griffin said. “There is no getting around the fact that the court’s decision was based on our nation’s most fundamental principles, and that the Constitution does not permit unequal treatment under the law.”

The 1972 case the Proposition 8 lawyers cited in their brief involved a gay couple who sought the right to marry in Minnesota and were rebuffed by that state’s highest court and ultimately, the U.S. Supreme Court, which refused to hear their appeal.

Before declaring Proposition 8 unconstitutional last month, Walker rejected arguments that he was bound by the 38-year-old case, determining that the high court’s rulings in subsequent gay rights cases were more relevant to his deliberations.

They also cited as evidence that Walker had exceeded the bounds of his authority in a 1982 decision in which the 9th Circuit ruled that a gay U.S. citizen who had obtained a marriage license in Colorado was not eligible to sponsor his foreign-born same-sex partner for immigration purposes.

The pro-Proposition 8 legal team devoted part of their filing to trying to persuade the 9th Circuit that they should be allowed to defend the ballot measure since California Gov. Arnold Schwarzenegger and Attorney General Jerry Brown have refused to appeal the lower court ruling.

Doubts have been raised about whether the coalition of religious and conservative groups that qualified Proposition 8 for the ballot and campaigned for its passage have authority to do so because its members are not responsible for enforcing marriage laws.

Under federal court rules, appealing parties have to demonstrate they have suffered a direct, concrete and individualized harm. The same-sex marriage ban’s sponsors meet those requirements, their lawyers argued Friday, because the California Supreme Court allowed them to defend Proposition 8 in an ultimately unsuccessful effort to get the measure overturned last year and Walker allowed them to defend it again in his court.

Lawyers for a Southern California county whose residents voted overwhelming for Proposition 8 also were due to submit briefs before midnight arguing why they also should be allowed to appeal. The Imperial County Board of Supervisors and the county clerk have maintained they have the legal right to challenge Walker’s ruling even if the ban’s sponsors don’t because counties issue marriage licenses.

If the 9th Circuit dismisses the appeal after deciding that neither the county nor the measure’s proponents have legal standing, Walker’s ruling would become final unless the U.S. Supreme Court agrees to take up the case.

If the high court refuses to intervene, gay couples would be able to marry in California again. An estimated 18,000 couples were married in California before Proposition passed.

—  John Wright

California Supreme Court refuses to force Gov. Schwarzenegger to appeal Prop 8 decision

Ruling means case may hinge on whether Yes on 8 has standing

Lisa Keen  | Keen News Service

The California Supreme Court on Wednesday night, Sept. 8 denied a petition from a conservative group seeking to force California Gov. Arnold Schwarzenegger to participate in an appeal of the Proposition 8 case.

The full court issued its decision with a simple two-sentence declaration, denying a petition from the Pacific Justice Institute. The denial came just hours after Schwarzenegger and state Attorney General Jerry Brown submitted letters to the court, explaining that they were not participating in the appeal of Perry v. Schwarzenegger.

In a letter from his attorney, Gov. Schwarzenegger indicated what had been uncertain before — that he had decided not to appeal the Proposition 8 court decision to the 9th Circuit.

The definitive statement from Schwarzenegger — coupled with the state supreme court’s refusal to require state participation in the appeal — means the ability of Proposition 8 proponents to appeal may depend entirely on the legal standing of the Yes on 8 coalition. (There is one remaining possibility: the County Board of Supervisors of Imperial County, California, has asked to serve as an intervenor in the appeal. Because the county issues marriage licenses, it may be able to demonstrate a necessary element of standing — that it is impacted by the district court decision.)

Gov. Schwarzenegger had until Sept. 11 to make a decision and, though his position on marriage equality for gay couples has been changing, his most recent statements seemed to indicate he would not direct the state’s attorney general to appeal the decision from the U.S. District Court in San Francisco.

That decision, issued Aug. 4 by Judge Vaughn Walker, found Proposition 8 violates the federal constitutional guarantee to equal protection. The Yes on 8 coalition filed its appeal, and a three-judge panel of the 9th Circuit has said it will hear the appeal during the first week of December, along with arguments concerning whether the Yes on 8 coalition has standing to appeal.

Hoping to shore up the legitimacy of that appeal, the Pacific Justice Institute, a conservative legal group, filed an appeal — Beckley v. Schwarzenegger — to the California Supreme Court this week, asking justices to force the governor to instruct the attorney general to join the appeal in the 9th Circuit.

The state supreme court ordered the governor and attorney general to weigh in on this matter Wednesday. And, in a five-page letter Sept. 8, Counsel for the Governor Andrew Stroud told the court, “Although Beckley may disagree with the Governor’s decision not to file a notice of appeal [in the Proposition 8 case in federal court], it was the Governor’s decision to make.”

A letter from Attorney General Jerry Brown’s deputy, Tamar Pachter, reiterated that Brown has long opposed Proposition 8 as unconstitutional and that Brown’s decision not to appeal the federal court decision in Perry v. Schwarzenegger “is an ordinary and sound exercise of the discretion secured by law to his office.”

Pachter says the Pacific Justice Institute’s petition is based on its “fears that the the federal courts will rule that [Yes on 8 proponents] lack standing to pursue their appeal …”

“But the Attorney General has no duty to appeal at all, let alone to file an appeal he has determined is legally unjustified, soley to manufacture federal appellate standing in private parties,” wrote Pachter.

Copyright ©2010 Keen News Service. ALL RIGHTS RESERVED.

—  John Wright

AG Brown, couples urge speedy return to gay marriages

PAUL ELIAS and LISA LEFF  |  Associated Press

SAN FRANCISCO — The attorneys who successfully sued to strike down California’s same-sex marriage ban have joined state Attorney General Jerry Brown in urging a federal appeals court to quickly allow gay marriages to resume in the state.

Theodore Olson and David Boies, the high-profile lawyers representing two couples, told the appeals court that same-sex couples are being hurt every day Proposition 8 is enforced and should not be denied their civil rights while the ban’s sponsors pursue an appeal of this month’s decision overturning the 2008 measure that was approved in a referendum.

“Indeed, the only harm at issue here is that suffered by Plaintiffs and other gay and lesbian Californians each day that Proposition 8′s discriminatory and irrational deprivation of their constitutional rights remains in force,” the lawyers argued in a filing late Friday, Aug. 13.

Brown, who is the Democratic nominee for governor, said in a separate filing that there was no reason for the 9th Circuit to grant the emergency stay request because state and local agencies would suffer no harm by being required to sanction same-sex marriages. County clerks across the state already are gearing up to do so next week, he said.

The swiftly drafted legal papers came in response to efforts by same-sex marriage opponents to get the 9th U.S. Court of Appeals to block a lower court judge’s ruling striking down Proposition 8 as unconstitutional from taking effect this week. If the 9th Circuit refuses to intervene, it would clear the way for same-sex couples to marry starting after the close of business Wednesday, Aug. 18.

Protect Marriage, the coalition of religious and conservative groups that sponsored Proposition 8, has appealed U.S. District Judge Vaughn Walker’s Aug. 4 ruling that found the voter-approved law unconstitutional. After Walker said on Thursday, Aug. 12 that he planned to finalize his ruling on Wednesday at 5 p.m., the group’s lawyers asked the 9th Circuit to prevent any gay marriages while the appeal is pending.

They argued the appeals court should grant an emergency stay “to avoid the confusion and irreparable injury that would flow from the creation of a class of purported same-sex marriages.”

Depending on how the 9th Circuit rules, same-sex couples could get married in California as early as next week or they would have to wait while the appeal works its way through the court and potentially the U.S. Supreme Court as well.

Walker, however, has expressed doubts over whether Protect Marriage has the right to challenge his ruling if neither the attorney general nor the governor elect to do so. Both officials refused to defend Proposition 8 in Walker’s court and have since said they see no reason why gay couples should not be able to get married now.

Although he allowed the group to intervene in the trial, the judge said the appellate court would have to make its own determination that same-sex marriage opponents would be injured if gay couples could wed, a claim Walker explicitly dismissed in his decision invalidating Proposition 8.

The ban’s backers addressed the potential for such a roadblock in their emergency stay request, saying California’s strong citizen initiative law permits ballot measure proponents to defend their interests if state officials will not.

“Proponents may directly assert the state’s interest in defending the constitutionality of its laws, an interest that is indisputably sufficient to confer appellate standing,” they said.

Theodore Boutrous, a lawyer with the legal team representing same-sex couples, said that keeping Protect Marriage from moving forward with an appeal was not necessarily the top priority of the plaintiffs.

“We believe that Chief Judge Walker’s ruling last week on the merits provides a powerful record on appeal, and we want the appellate courts to address the merits of Proposition 8,” Boutrous said. “The standing issue that Chief Judge Walker identified provides another potential weapon in our arsenal that will be part of the appellate arguments.”

California voters passed Proposition 8 as a state constitutional amendment in November 2008, five months after the California Supreme Court legalized same-sex unions and an estimated 18,000 same-sex couples already had married.

Five states — Massachusetts, Connecticut, Vermont, New Hampshire and Iowa — and the District of Columbia have legalized same-sex marriage. New York and Maryland recognize those marriages even though same-sex couples can’t wed within their borders. However, the federal government doesn’t recognize same-sex marriage, nor do the vast majority of states.

—  John Wright