Prop 8 case heads back to court in September

Retired U.S. District Judge Vaughn Walker

The next hearing in the legal battle over Proposition 8, California’s constitutional amendment banning same-sex marriage, will take place before the state’s Supreme Court on Sept. 6.

The issue is whether the ballot initiative’s sponsors have standing to appeal a federal district judge’s ruling declaring Prop 8 unconstitutional. Former Gov. Arnold Schwarzenegger and Attorney General Jerry Brown refused to appeal the ruling. Brown is now governor and maintains his position in the case.

The hearing will take place in San Francisco and the justices have 90 days to decide whether they believe state law gives ballot measure proponents legal standing when the elected officials refuses to defend an issue, according to the LA Times.

The 9th Circuit Court of Appeals will wait for the state Supreme Court’s decision before proceeding.

If Prop 8 backers don’t have standing, the appeals court won’t take up the merits of the appeal. District Judge Vaughn Walker’s ruling will stand and Prop 8 will be unconstitutional. California would then allow same-sex marriage, as it did for six months before Prop 8 passed in 2008.

If Prop 8 backers do have standing, the 9th Circuit Court of Appeals would consider the merits of the case.

The LA Times reports that while the state Supreme Court has given sponsors of propositions wide latitude, the court has never ruled on whether citizens can stand in for elected officials, especially on an issue that doesn’t affect them.

Presumably, the proponents of Prop 8 were trying to prevent other people from marrying and having civil rights — as opposed to campaigning for a ban to prevent themselves from marrying.

—  David Taffet

Calif. AG: Prop 8 backers can’t defend marriage ban

Attorney General Kamala Harris

LISA LEFF | Associated Press

SAN FRANCISCO — California’s attorney general has again come out against the state’s same-sex marriage ban, this time telling the state Supreme Court the proponents of successful ballot initiatives do not have the right to defend their measures in court.

Kamala Harris, a Democrat who succeeded Gov. Jerry Brown in January as attorney general, submitted an amicus brief Monday in the ongoing legal dispute over the voter-approved ban known as Proposition 8.

In it, she argued that only public officials exercising the executive power of government have authority to represent the state when laws passed by voters or the Legislature are challenged.

“California law affords an initiative’s proponents no right to defend the validity of a successful initiative measure based only on their role in launching an initiative process,” Harris wrote.

The question of where the role of ballot measure backers ends is critical to the legal fight over California’s ban on same-sex marriages. Both Brown and former Gov. Arnold Schwarzenegger refused to defend the 2008 constitutional amendment on appeal after a federal judge struck it down last summer as a violation of civil rights.

Proposition 8′s sponsors asked the 9th U.S. Circuit Court of Appeals to allow them to step in, but the court punted the question to the California Supreme Court earlier this year, saying it was a matter of state law.

If the sponsors are not permitted to intervene, the lower court ruling overturning Proposition 8 will stand.

Lawyers for the coalition of religious and conservative groups that qualified the gay marriage measure for the ballot and campaigned for its passage have argued that initiative proponents need to be allowed to advocate for laws in court to prevent elected officials from effectively vetoing measures by not defending them in court.

Harris contended in her brief that rather than empowering citizens, granting the sponsors of initiatives the ability to overrule the governor and attorney general’s judgment “would rob the electors of power by taking the executive power from elected officials and placing it instead in the hands of a few highly motivated but politically unaccountable individuals.”

The California Supreme Court is expected to hold a hearing in the case before the end of the year.

Republican State Sen. Tom Harman of Orange County introduced a bill that would grant ballot measure sponsors the right to represent the state when elected officials refuse to defend enacted laws in court. The Senate Judiciary Committee defeated it on a 3-2 vote Tuesday.

—  John Wright

The fabric of our lives

T-shirts may be the front line in the battle for LGBT civil rights, or at least the battle’s billboards

LESLIE ROBINSON  |  General Gayety

We Americans like to express ourselves with our chests. I’m not speaking of Jane Russell or even Arnold Schwarzenegger. I’m talking about our proclivity for wearing T-shirts with slogans on them.

Americans have been human billboards for decades.

The slogans on T-shirts celebrate, advocate, advertise, unify, decry and polarize. Americans have lots to say — on shirts made in Honduras.

So it makes sense that one part of the gay story in this country is being played out in cotton/polyester blends.

Over the past years high school students and younger — kids on both sides of the gay issue — have been wearing their hearts on their sleeves. And getting sent home for it.

The latest shirt-skirmish is still unfolding at a middle school in DeSoto Parish in Louisiana. Student Dawn Henderson wore a shirt reading “Some Kids are Gay. That’s OK.” Principal Keith Simmons ordered her to change her shirt or go home.

It occurs to me that any kid aiming to get out of a test at school doesn’t need to fake the flu; just don a controversial T-shirt and in minutes you’ll be back home watching Judge Judy.

According to the ACLU of Louisiana, DeSoto school officials claimed the shirt was “distracting.” The ACLU sent Simmons a letter arguing that Henderson has a First Amendment right to express her opinion across her chest, as long as the school allows clothing with slogans.

If the school decides to forbid clothing with slogans, it might be hearing from Nike.

In another T-shirt to-do, which actually began back in 2006, the 7th U.S. Circuit Court of Appeals ruled a month ago that students at Neuqua Valley High School in Naperville, Ill., could wear T-shirts saying “Be Happy, Not Gay.” The court maintained a “school that permits advocacy of the rights of homosexual students cannot be allowed to stifle criticism of homosexuality.”

May the judges’ T-shirts ride up with wear.

On Nov. 2 last year, Election Day, senior Kate Cohn made a pro-gay statement at Falcon High School in Peyton, Colo., by wearing a shirt reading “Marriage is so gay.” She said Principal Mark Carara told her the shirt was offensive and violated the dress code forbidding clothing potentially disruptive to the academic environment.

I’m guessing that means fishnets are out. At least for guys.

Cohn’s mom said Carara later likened the T-shirt to apparel promoting alcohol or drug use.

That increasingly well-known arbiter of fashion, the ACLU, sent a letter to school administrators demanding Cohn and others be allowed to wear the shirt, and the two-week ban was lifted.

Perfect. Two weeks gave her enough time to wash her shirt and make it all pretty for its re-debut.

I can say with certainty that T-shirt tizzies haven’t been limited to the younger set or the recent past. Back in the mid-’90s I covered a protest by adults in Hampton Beach, N.H., outside a T-shirt store that peddled a couple of anti-gay shirts. One read “Silly faggot, dicks are for chicks,” and the other said “Aids Kills Fags” — or something of that ilk.

What I remember best is a teenager pointedly buying one of those shirts during the protest, then sheepishly returning it afterwards because he needed the money to get home.

The other day I spotted a different T-shirt twist to the American LGBT story. Openly gay veteran political consultant Fred Karger, in Washington, D.C., to file for the Republican presidential nomination, met with the Republican National Committee chairman.

Karger — completely unknown to the public and, to repeat, openly gay — told Roll Call, “We had a great meeting. I gave him one of my T-shirts.”

I’d like to know what slogan is on that shirt. Maybe “Karger 2012: No, Really.”

Leslie Robinson still has a pro-ERA T-shirt that her mother gave her. E-mail Leslie at lesarobinson@gmail.com, and check out her blog at GeneralGayety.com.

—  John Wright

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

Top 10: As Prop 8, DOMA cases proceeded, Texas made its own marriage news

Marriage
LANDMARK RULING | Marriage equality supporters celebrate outside San Francisco City Hall after Judge Vaughn Walker’s August ruling declaring Prop 8 unconstitutional. (Rick Gerharter)

No. 4:

View all of the Top 10

As the year began, all eyes were on California, where conservative superstar Ted Olson and liberal luminary David Bois joined forces to challenge the state’s voter-approved constitutional amendment banning same-sex marriage. The case is Perry v. Schwarzenegger, but both Gov. Arnold Schwarzenegger and Attorney General Jerry Brown declined to defend Prop 8. As a result, ProtectMarriage.com, the main group behind the initiative, filed to intervene and defend it in court. On Aug. 4, six months after the trial began, Judge Vaughn Walker issued his ruling striking down the ban as unconstitutional, prompting celebrations across the country. The state refused to appeal, but the amendment’s supporters did. In December, a three-judge panel from the U.S. Court of Appeals for the Ninth Circuit convened to hear oral arguments in the Prop 8 case. The judges grilled attorneys on both sides, but marriage equality advocates said they were encouraged by the hearing. A ruling is expected next year, but the case likely will end up at the Supreme Court.

Meanwhile, two lawsuits challenging the federal Defense of Marriage Act went to trial in Massachusetts this year, and in both cases, DOMA came out the loser. Those cases are also now on appeal.

In Texas, Attorney General Greg Abbott continued his crusade against same-sex divorce. In a Dallas case, Abbott’s office won a victory in May when a state appeals court overturned a judge’s decision to grant a same-sex divorce. Abbott’s appeal of another divorce in Austin is pending.

Meanwhile, transgender issues and LGBT marriage rights collided in July as Houston trans woman Nikki Araguz found herself going up against her in-laws, following the death of her husband, volunteer firefighter Thomas Araguz. Araguz’s family and former wife claimed his marriage to Nikki was invalid because she was born a biological male, and that all his benefits legally should go to them instead of Nikki. The case is awaiting trial.

And Texas would make big marriage news again in November, when a gay couple from Dallas announced they’d been legally married without leaving the state. Mark Reed-Walkup and Dante Walkup held their wedding ceremony at the W-Dallas hotel, but it was officiated via Skype from Washington, D.C., where same-sex marriage is legal. A few weeks later, D.C. officials declared the marriage invalid. The couple later physically traveled to D.C. and got married again. They’ve also renewed a complaint against The Dallas Morning News for refusing to publish their wedding announcement.

Elsewhere, Illinois became the sixth state to approve civil unions. In Hawaii, the legislature approved a bill allowing same-sex civil unions, but Republican Gov. Linda Lingle vetoed it. Minnesota Gov. Tim Pawlenty vetoed a bill that would have given same-sex partners control over the dispensation of their partners’ remains after death, because he supports “traditional marriage.”

Wisconsin’s Supreme Court upheld that state’s gay marriage ban.

Internationally, Portuguese President Anabel Cavaco Silva signed into law legislation that allows same-sex marriage. Argentina’s legislature approved a bill legalizing gay marriage, and President Cristina Fernández de Kirchner quickly signed it into law.

— Tammye Nash

This article appeared in the Dallas Voice print edition December 31, 2010.

—  Kevin Thomas

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

Court won’t force Calif. officials to defend Prop 8

Associated Press

SACRAMENTO, Calif. — A California court has refused to order Gov. Arnold Schwarzenegger and Attorney General Jerry Brown to appeal a ruling that overturned the state’s gay marriage ban.

The 3rd District Court of Appeal on Wednesday, Sept. 1 denied a conservative legal group’s request to force the officials to defend voter-approved Proposition 8.

Presiding Justice Arthur Scotland did not explain why the appeals court turned down the request filed two days earlier by the Pacific Justice Institute.

The institute now plans to take the matter to the California Supreme Court, Chief Counsel Kevin Snider said Thursday.

“We are disappointed that the appellate court showed indecisiveness in trying to prevent a constitutional crisis,” Snider said. “They didn’t want to deal with it.”

The institute maintains the attorney general and governor have the duty to uphold all laws, including those passed by voters.

Brown has said he cannot defend Proposition 8 because he thinks it is unconstitutional; Schwarzenegger has chosen to remain neutral.

Chief U.S. District Judge Vaughn Walker struck down Proposition 8 last month as a violation of gay Californians’ civil rights.

The measure approved by 52 percent of California voters in November 2008 amended the state Constitution to outlaw same-sex unions five months after the state Supreme Court legalized them.

The state has until Sept. 11 to challenge Walker’s ruling. Both Brown and Schwarzenegger have said they don’t plan an appeal.

The coalition of conservative and religious groups that sponsored the ban has appealed the ruling by Walker. But doubts have been raised about whether its members have authority to do so because as ordinary citizens they are not responsible for enforcing marriage laws.

Twenty-seven members of the California Assembly sent Schwarzenegger a letter this week urging the governor to bring an appeal if Brown will not.

—  John Wright

Clearing the confusion on lifting the stay: Walker’s stay order will expire as originally scheduled next Wednesday

Ken Upton, senior staff attorney in Lambda Legal’s South Central Regional Office here in Dallas, has cleared up the confusion over Judge Vaughn Walker’s ruling on lifting the stay of his order overturning Proposition 8.

Upton explains, in a comment to an earlier Instant Tea post, that Walker has declined to extend the stay he issued last week, but instead to let it expire as originally scheduled on Wednesday, Aug. 18, at 5 p.m. PST.

The 9th Circuit Court of Appeals has the option to issue its own stay of Walker’s ruling against Prop 8. I have heard a rumor that I can’t even begin to confirm yet that the 9th Circuit isn’t likely to issue a stay. If that is how it turns out, same-sex couples will again be able to legally marry in California beginning next Wednesday.

The question still remains as to whether the Yes on 8 campaign — which unsuccessfully defended Prop 8 in Walker’s court — even as legal standing to appeal Walker’s ruling. The actual defendants in the case were Gov. Arnold Schwarzenegger and Attorney General Jerry Brown, both of whom declined to defend the amendment and both of whom issued statements this week saying same-sex couples should be allowed to legally marry. Since the Yes on 8 people are actually only “defendant intervenors,” they might not have legal standing to appeal Walker’s decision, some experts have said.

—  admin

In California news, Harvey Milk Day is official

Got Milk? Californians will every May 22nd from now on.
Got Milk? Californians will every May 22 from now on.

Just read the following headline -Schwarzenegger creates day honoring Harvey Milk.

“He has become much more of a symbol of the gay community than he was a year ago because of those things,” Schwarzenegger spokesman Aaron McLear said. “That made the difference from last year: he’s really come to symbolize the gay community in California”

In his veto message a year ago, the Republican governor said Milk should be honored locally by those who were most impacted by his contributions. He did not write a signing message this year saying why he flip-flopped.

Hopefully, Columbus Day revelers weren’t upset by this news happening on their day.

—  Rich Lopez