BREAKING: Court allows military to continue enforcing ‘don’t ask don’t tell’ pending appeal

The U.S. military can continue enforcing “don’t ask don’t tell” pending the government’s appeal of a district judge’s decision declaring the policy unconstitutional.

With one justice dissenting, a three-judge panel of the U.S. Court of Appeals for the Ninth Circuit on Monday issued a stay of the district judge’s injunction barring the military from enforcing the policy.

The appeals court had already granted a temporary stay of the injunction, but Monday’s decision extends the stay for the duration of the appeal, which will take at least several months.

Chris Geidner at Metro Weekly reports:

“In addition to the fact that this case raises ‘serious legal questions,’” the court wrote, “there are three reasons that persuade us to grant a stay pending appeal.”

The reasons included that “Acts of Congress are presumptively constitutional,” that “‘judicial deference . . . is at its apogee’ when Congress legislates under its authority to raise and support armies” and that “the district court’s analysis and conclusions are arguably at odds with the decisions of at least four other Circuit Courts of Appeal.”

Dan Woods, an attorney for the plaintiffs in Log Cabin Republicans v. United States, issued the following statement:

“The court’s ruling is a disappointment not only to us, but also to all homosexual servicemembers who bravely put themselves in harm’s way so that we can all enjoy the constitutional rights and freedoms that they themselves are being denied. The decision only slows the day when military service will be available to all Americans, regardless of sexual orientation, who want nothing more than to serve their country honorably and patriotically. We will continue to fight on for the constitutional rights of these Americans and look forward to a favorable decision on the merits of the appeal. Meanwhile, we will discuss the court’s order with our client to determine whether we will ask for a review of the order by the U.S. Supreme Court.”

R. Clarke Cooper, executive director of Log Cabin, said in a statement, “Log Cabin Republicans is disappointed that ‘Don’t Ask, Don’t Tell’ will continue to burden our armed forces, undermine national security and limit the freedom of our men and women in uniform. Despite this temporary setback, Log Cabin remains confident that we will ultimately prevail on behalf of servicemembers’ constitutional rights. In the meantime, we urge President Obama to use his statutory stop-loss power to halt discharges under this discriminatory and wasteful policy. The president claims to want to see ‘Don’t Ask, Don’t Tell’ ended. It is time that he stop talking and start working to make a real difference for gay and lesbian Americans by pushing for repeal when Congress returns.”

—  John Wright

BREAKING: Appeals court grants stay of DADT ruling, making policy enforceable again

John Wright  |  Online Editor
wright@dallasvoice.com

“Don’t ask don’t tell” likely will soon go back into effect, after a federal appeals court granted a temporary stay Wednesday of a district judge’s previous order halting enforcement of the policy.

The U.S. Department of Justice requested an emergency stay of the order from District Judge Virginia Phillips, who ruled in September that the policy is unconstitutional, in a lawsuit brought by Log Cabin Republicans. Phillips issued an order halting enforcement of the policy last week, and denied the government’s request for an emergency stay on Tuesday. However, the DOJ then requested an emergency stay from the U.S. Court of Appeals for the Ninth Circuit, which will hear the government’s appeal of Phillips’ ruling.

Wednesday’s temporary stay, issued by a three-judge panel of the appeals court, means the ban on open service is legally enforceable again. The temporary stay will remain in effect until sometime after Oct. 25, when the Ninth Circuit court decides whether to leave it in place pending the appeal.

“This interim temporary stay means that ‘Don’t Ask, Don’t Tell’ is once again on the books, and is likely to be enforced by the Defense Department,” said Aubrey Sarvis, executive director of the Servicemembers Legal Defense Network. “Gay and lesbian service members deserve better treatment than they are getting with this ruling. We now must look to the Senate next month in the lame duck session to bring about the swift certainty needed here and to repeal this unjust law that serves no useful purpose.”

It’s unclear how Wednesday’s stay will affect gays and lesbians who may have enlisted during the eight days since Phillips’ injunction when the policy was unenforceable.

“The revival of the ‘Don’t Ask, Don’t Tell’ law is a sad day for all Americans who want the best and brightest service members defending our country,” said Joe Solmonese, president of the Human Rights Campaign. “Today’s decision only furthers our resolve to send this law to the dustbin of history and also draws a spotlight on the administration to make good on their pledge to end these discharges that damage our national security.”

Alex Nicholson, executive director of Servicemembers United, said he hopes the appeals court will opt not to extend the stay during the appeal, which will take at least several months.

“While we are obviously disappointed that the injunction was temporarily stayed, we hope that the Ninth Circuit will recognize the inherent contradiction in the government’s arguments for a longer stay in light of eight full days of non-enforcement with no ‘enormous consequences,” Nicholson said. “An objective look at the evidence before the court clearly indicates that ending ‘Don’t Ask, Don’t Tell’ would not harm military readiness, but would rather enhance it.”

GetEQUAL announced that it will be protesting Thursday when President Barack Obama visits Seattle.

“This temporary stay, sought by President Obama’s Department of Justice, bring the military’s discriminatory ‘Don’t Ask, Don’t Tell’ law back from the dead,” said Robin McGehee, co-founder and director of GetEQUAL. “It is a travesty that after numerous attempts, President Obama and Attorney General Eric Holder will go down in history as the Administration that breathed life back into ‘Don’t Ask, Don’t Tell.’ The lives and careers of openly gay and lesbian servicemembers are now back in the crosshairs of our government and a renewed commitment to discrimination falls squarely in the hands of this White House.”

—  John Wright

BREAKING: Government to request stay of injunction halting enfocement of DADT

The U.S. Department of Justice was expected to ask a federal judge on Thursday afternoon to allow the military to continue enforcing “don’t ask don’t tell” pending the government’s appeal of a September ruling declaring the policy unconstitutional.

U.S. District Court Judge Virginia Phillips issued an injunction Tuesday, Oct. 12 ordering the Department of Defense to halt enforcement of DADT worldwide. In September, Phillips ruled that DADT violates servicemembers’ constitutional rights to free speech and due process.

The DOJ plans to appeal Phillips’ ruling to the U.S. Court of Appeals for the Ninth Circuit, and on Thursday government lawyers were expected to request a stay of the injunction pending the appeal, according to The Advocate. The appeal must be filed within 60 days.

If Phillips doesn’t grant their request for a stay, DOJ attorneys likely will ask for an emergency stay from the appeals court.

—  John Wright

Motion for rehearing filed in Texas gay divorce case

Attorneys for plaintiff ask that full 5th District appeals court rehear case after 3-judge panel overturned trial court ruling granting divorce

John Wright  |  Online Editor wright@dallasvoice.com

Attorneys for a gay Dallas man who’s seeking a divorce from his husband filed a motion this week requesting a re-hearing of the case by the full 5th District Court of Appeals.

An all-Republican, three-judge panel of the Dallas appeals court ruled Aug. 31 that the man, identified in court documents as J.B., cannot obtain a divorce in Texas because the state doesn’t recognize same-sex marriage.

J.B. and his attorneys had the option of dropping the matter, appealing the decision to the Texas Supreme Court, or requesting a re-hearing by the 13-justice 5th District Court en banc. They filed their motion seeking the rehearing on Wednesday, Sept. 15.

“We believe adequate grounds exist for the entire court of appeals to reconsider the panel’s opinion, and we hope the entire Dallas court of appeals will do that,” said James J. “Jody” Scheske of Akin Gump Strauss Hauer & Feld, the Austin firm representing J.B.

Scheske said for the request to be granted, a majority of the 13 justices would have to agree to rehear the case.

Depending on the outcome, Scheske said he’s unsure whether they’ll appeal the decision to the Texas Supreme Court.

“We’re taking it one step at a time,” Scheske said. “We’re hopeful the entire court of appeals will issue an opinion we can live with, in which case further appeal won’t be necessary.”

J.B. and his partner, H.B., were married in Massachusetts in 2006. After they moved to Dallas, J.B. filed for a divorce in 2008.

In October 2009, Democratic District Judge Tena Callahan ruled she had jurisdiction to hear J.B.’s divorce petition, saying Texas’ bans on same-sex marriage are unconstitutional.
Republican Attorney General Greg Abbott appealed Callahan’s decision, and the appeals court panel ruled in Abbott’s favor.

For a full copy of the motion seeking the rehearing, go to http://tinyurl.com/3x6u4mt.

This article appeared in the Dallas Voice print edition September 17, 2010.

—  Michael Stephens

Equality Texas calls gay divorce ruling ‘uninformed, outdated and homophobic’

Instant Tea is no attorney, but we can read. And having now thoroughly perused a Dallas appeals court’s gay divorce ruling from Tuesday, we’d say it doesn’t take a law degree to tell you that it’s bad — like, real bad.

The gay divorce ruling reads like an anti-thesis to U.S. District Judge Vaughn Walker’s decision last month declaring Prop 8 unconstitutional. Thankfully, we can take comfort in knowing that the gay divorce ruling will have a limited impact in terms of legal precedent. And maybe, just maybe, it will serve as a helpful reminder about just how far the LGBT community has to go in places like Texas.

Anyhow, we’ll have much more about the ruling in Friday’s Dallas Voice, but for now we thought we’d share this statement sent out Tuesday afternoon by Equality Texas:

The Fifth District Court of appeals has taken the most extreme, the most conservative view possible on each issue before it. It’s not as if they wanted to just overturn the trial court’s decision, they wanted to smash it into ground and discourage anyone from ever filing a pro-LGBT suit ever again.

The ruling harkens back to a view of the world from generations past — a world where LGBT people were content to live in closets, and were afraid to demand to be treated with dignity and respect. A dignity and respect that this court goes out of its way to completely deny.

In going so far to overturn the trial court’s decision, with such an extreme opinion, the appellate court has lowered the bar for any effort to overturn its ruling:

• The Court’s view of marriage is historically inaccurate. Marriage existed in many forms, for many reasons, for many thousands of years.

• Refusal to view sexual orientation as a suspect class singled out for disparate and discriminatory treatment ignores both the entire purpose of DOMA and the anti-marriage amendment, as well as the well-documented history of discrimination, hate crimes, and statutory treatment of LGBT individuals.

• The Court’s view of same-sex relationships is uninformed, outdated and homophobic — predicating its decision upon the ability to have children naturally — thereby ignoring the thousands of Texas households raising kids with same-sex parents, or even single parent households.

• The ruling holds Texas’ laws are “rationally related to the legitimate state interest in fostering the best possible environment for procreation and child-raising.”  Evidently to the exclusion of all others, and without a shred of evidence in the record — particularly since longitudinal studies have demonstrated that same-sex parents are as good as raising kids as straight couples.

—  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

Appeals court grants stay of Prop 8 ruling

LISA KEEN  |  Keen News Service

A three-judge panel of the 9th Circuit U.S. Court of Appeals issued an order Monday granting Yes on 8’s request for a stay of Judge Vaughn Walker’s ruling that Proposition 8 is unconstitutional. The appeals court panel also ordered, without being asked, that Yes on 8’s appeal of Walker’s ruling in Perry v. Schwarzenegger be addressed by the court on an expedited basis.

The panel said it would hear arguments on appeal during the week of Dec. 6, as well as arguments concerning whether Yes on 8 has legal standing to press the appeal.

The two-page order is a disappointment to many same-sex couples in California who were hoping that they would be able to obtain marriage licenses as soon as Judge Walker’s stay expired — at 5 p.m. Pacific time on Wednesday.

“We are very gratified that the Ninth Circuit has recognized the importance and pressing nature of this case and the need to resolve it as quickly as possible by issuing this extremely expedited briefing schedule,” said Ted Olson, one of the lead attorneys for plaintiffs challenging Proposition 8.

Olson, one of the most prominent conservative attorneys in the country, launched the high-profile challenge of California’s voter-approved constitutional ban on same-sex marriage with liberal attorney icon David Boies. Walker, chief judge of the U.S. District Court for Northern California (San Francisco), heard three weeks of testimony by the plaintiffs and Proposition 8 supporters in January.

In a dramatic 136-page ruling on Aug. 4, Walker declared the same-sex marriage ban in the state constitution violates the U.S. Constitution’s guarantees of equal protection and due process. Walker agreed to stay — or delay enforcement — of his decision until Aug. 18, giving the 9th Circuit time to decide whether to grant a more extended appeal.

Evan Wolfson, who was a lead attorney on the first same-sex marriage case — in Hawaii in 1996 — called the 9th Circuit panel’s decision to continue Walker’s stay “disappointing.”

“But there are many twists in the road to justice,” said Wolfson, “and we are encouraged by the court’s setting a fast pace for the appeal, revealing that the judges understand how important a quick end to the exclusion from marriage is to gay couples, their loved ones, and all Americans who believe in equality under the law.”

The 9th Circuit panel includes two Clinton appointees — Judges Sidney Thomas and Michael Hawkins — and one Reagan appointee, Edward Leavey.

The panel set Sept. 17 as the date Yes on 8’s initial argument brief is due.

The response brief from the Ted Olson-David Boies legal team challenging Proposition 8 is due Oct. 18. And Yes on 8 may reply to plaintiffs’ brief by Nov. 1.

Monday’s order means the same-sex marriage ban will stay intact at least until December, when the 9th Circuit will hear arguments on both the issue of Yes on 8’s standing to appeal and, perhaps, on the merits of Walker’s decision.

Meanwhile, on the East Coast, where U.S. District Court Judge Joseph Tauro ruled — in two separate cases — July 9 that the ban on federal benefits to same-sex couples is unconstitutional, the clock is still ticking down the 60 days the U.S. Department of Justice has to appeal the decisions to the 1st Circuit U.S. Court of Appeals.

© 2010 by Keen News Service. All rights reserved.

—  John Wright

Vowels custody case returned to trial court for hearing

Supreme Court refuses to hear appeal; appellate court ruled that non-bio mother has standing to sue

DAVID TAFFET  |  Staff Writer taffet@dallasvoice.com

Kristie Vowels
Kristie Vowels

The Texas Supreme Court has refused to hear an appeal by a lesbian mother seeking to block her former partner from seeing their daughter. The case now returns to District Judge Teena Callahan’s court for trial.

Kristie Vowels and Tracy Scourfield were partners for four years. Together they had a daughter, with Scourfield as the birth mother. After they split up, Vowels saw the child on a regular visitation schedule for about a year, but then Scourfield cut off contact between Vowels and the child.

Vowels sued for visitation rights based on Texas law that allows someone who provided six months of care, control and possession ending within the last 90 days to file for custody.

Callahan originally ruled that Vowels did not meet legal standing to sue. Michelle May O’Neil, Vowels attorney, said Callahan gave no reason for her ruling.
Vowels appealed that ruling. The appeals court initially sided with Scourfield but later reversed itself to side with Vowels.

The Supreme Court returned the case to the appeals court, which then returned the case to district court.

O’Neil explained that non-biological parents in custody and visitation cases have to meet what is called the Troxel standard, named after a U.S. Supreme Court ruling in a child custody case.

“The presumption is that parents act in the best interest of their children,” O’Neil said.

Vowels said her former partner is a good mother. But whether or not Vowels gains custody could revolve on whether she and her attorneys can show any flawed decision-making on the part of her former partner.

“The flaw is that she unilaterally ripped the child from someone the child called mom,” O’Neil said.

O’Neil said that the case is being cited around the state and will affect heterosexual stepparents, grandparents and other caregivers as well.
“It’s legally the same question,” O’Neil said.

Callahan is the same judge who later ruled in a same-sex divorce case last October that the Defense of Marriage Act unconstitutionally denies equal protection to same-sex partners.

O’Neil said she knows the judge will approach the case without some of the prejudices others might have, but the ruling in the divorce case won’t change her approach to the Vowels trial.

Vowels said her commitment to her daughter is unwavering.

Although she has had no access to the child for the last three years, she said her daughter has a college account that she has continued to fund.

“That’s my daughter and I’m going to do what I can to fully support her,” Vowels said.

A hearing is scheduled for September. At that time a trial date could be set and O’Neil said she will ask for a temporary visitation order.

O’Neil said that Vowels and Scourfield had talked about completing adoption papers before they split up. She said that had the adoption been completed, this would have been a very different case.

Once an adoption is completed, there is no question of parental rights. The burden of proof would have been on the biological mother to show some cause to prevent the adoptive parent from seeing the child.

“Headline to parents out there,” O’Neil said, “Get the adoption done.”

This article appeared in the Dallas Voice print edition August 6, 2010.

—  Michael Stephens