Holder: DOJ will file brief in favor of same-sex marriage

eric holder.small

U.S. Attorney General Eric Holder

U.S. Attorney General Eric Holder told ABC News’ Pierre Thomas on Monday that the Justice Department will be filing a brief in the Utah same-sex marriage case urging the U.S. Supreme Court to uphold a lower-court ruling and block states from banning same-sex marriage.

District Judge Robert J. Shelby ruled last December that Utah’s same-sex marriage ban is unconstitutional. A three-judge panel of the 10th Circuit Court of Appeals upheld the ruling last month, and Utah Attorney General Sean Reyes announced that instead of asking the full 10th Circuit Court to review the case, he would appeal directly to the U.S. Supreme Court.

Holder said that filing the brief would be “consistent with the actions we have taken over the past couple of years,” in which the Justice Department has refused to defend the federal Defense of Marriage Act. Holder said that decision was “vindicated by the Supreme Court,” which ruled last year in Windsor vs. United States that the sections of DOMA allowing the federal government not to recognize same-sex marriages performed in jurisdictions that recognize such marriages are unconstitutional.

Holder told Thomas that he believes banning same-sex marriage is unconstitutional and that such bans cannot survive the standard of heightened scrutiny. He called the fight for LGBT rights “a defining civil rights challenge of our time,” and that LGBT people are waiting for an “unequivocal declaration that separate is inherently unequal.”

 

—  Tammye Nash

Dan Branch vows to defend state’s right to trample on rights of women, gays

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State Rep. Dan Branch speaks at a Log Cabin Republicans meeting in Dallas in 2008. But don’t expect Branch to address the gay GOP group again now that he’s running for statewide office. (John Wright/Dallas Voice)

Republican State Rep. Dan Branch, who represents much of Dallas’ Oak Lawn gayborhood in the Texas House, vowed to defend the state’s ban on same-sex marriage as he kicked off his campaign for attorney general on Tuesday.

“Whether defending our First Amendment freedoms, the Second Amendment right to bear arms or the 10th Amendment’s reservation of power to the states, I will exhaust all available remedies to protect Texas from attacks on our freedoms,” Branch said. “When our federal government fails to protect our borders or fulfill its commitment of emergency relief to communities like West, I won’t stop until the federal bureaucrats are held accountable. And I will fight for our state’s right to protect the unborn and our right to define marriage as between one man and one woman.”

In other words, Branch wants to protect Texas’ “right” to trample on the freedoms of women and same-sex couples.

—  John Wright

Log Cabin calls for immediate end to DADT, says keeping policy in place during repeal is ‘absurd’

Associated Press

SAN FRANCISCO — Gay rights advocates on Monday filed a challenge to a request by the Obama administration to keep the repealed “don’t ask, don’t tell” policy in place while the Pentagon prepares for an end to the ban on allowing gays to serve openly in the military.

In a brief filed in the 9th U.S. Circuit Court of Appeals in San Francisco, lawyers for gay political group Log Cabin Republicans said keeping the policy in place was “absurd.”

At issue is the constitutionality of Congress allowing the policy to stay in effect to give the Pentagon time to train troops and take other steps outlined in December when lawmakers repealed the 1993 law that put the ban in place. Under the new policy, the restrictions remain until the Pentagon certifies that the change won’t damage combat readiness.

The repeal came several months after a federal district judge issued an injunction barring enforcement of “don’t ask, don’t tell,” declaring in September that the policy was unconstitutional.

The Obama administration request to keep the policy in place was made in its brief challenging the injunction. Dan Woods, who is representing the Log Cabin Republicans, replied in the brief filed Monday.

“Even though a judge found this to be unconstitutional and the administration is not disagreeing with that, they are still investigating and able to discharge people,” he said.

Earlier this year, the administration said it would no longer defend the 1996 federal law that prohibits recognition of same-sex marriages.

President Barack Obama had concluded that any law that treats gay people differently is unconstitutional unless it serves a compelling governmental interest, Attorney General Eric Holder said when discussing the administration’s reasoning for that decision.

—  John Wright

We’re used to state-by-state laws on same-sex marriage, but what about county by county?

Conservative House Republicans in Iowa have introduced a bill that would prohibit county recorders form issuing marriage licenses — and block the state Supreme Court from reviewing the issue.

The apparent goal of the legislation is to prevent additional same-sex marriages in Iowa before a constitutional amendment can be passed to ban them. The Iowa House has already approved a resolution that would launch such an amendment.

But even the state’s attorney general says the latest proposal is unconstitutional because it would block review by the state Supreme Court:

That possible outcome: Iowans could challenge a recorder’s decision in trial courts, but those decisions could not be appealed to the Iowa Supreme Court.

That would make the lower court ruling final and would mean Iowa could become a patchwork of counties in which some recognized the law and others did not.

“I think the result is that you would have a hodgepodge of rulings across the state,” Bartrum said. “It would depend on whatever the local district judge thought because there would be no uniform appeal.”

While this legislation would clearly be a bad thing for Iowa, where same-sex marriage is already legal, we wouldn’t mind seeing a different version of it in Texas. Since our state leaders claim they’re all about local control, why not let the gays marry in Dallas County?

—  John Wright

Pro-gay marriage attorneys may move to recover Prop. 8 court costs

Associated Press

SAN FRANCISCO — The lawyers who successfully sued to overturn California’s gay marriage ban are indicating they plan to recover attorney’s fees if the verdict is upheld on appeal.

In papers filed Tuesday, Aug. 17, attorneys for two same-sex couples and the city of San Francisco asked the court to extend a deadline for seeking reimbursement from the losing side. In this case, that would be the groups that put the ban on the 2008 ballot.

Sponsors of Proposition 8 defended the ban in court after California’s governor and attorney general refused to.

Lawyers familiar with scope of the case suggest the dollar amount would be in the millions.

Plaintiffs lawyer Theodore Boutrous Jr. says it makes sense to wait until the 9th U.S. Circuit Court of Appeals decides on the Aug. 4 ruling that overturned the ban.

—  John Wright

High court may issue 1st Prop 8 ruling this week

U.S. District Judge Vaughn Walker

The Prop 8 case may be going to the Supreme Court sooner than expected — sometime this week.

Not the entire case. Just the motion to extend District Judge Vaughn Walker’s stay.

If the 9th Circuit Court opts not to extend the stay, the defendants in the case may take the case to the Supreme Court.

The argument by anti-gay marriage forces is that the stay needs to be extended to protect those who may marry. If the stay is lifted, those people may suffer harm. Nice of them to be so worried.

According to the New York Times, the anti-marriage folks would be facing an uphill battle on this issue, even with conservative members of the Supreme Court.

First, the interveners who’ve defended Prop 8 in the lower courts would have to convince the high court that this is their battle to fight. The state is the named defendant, but California’s governor and attorney general have declined to defend the marriage ban. In his decision last week allowing the stay to expire this Wednesday afternoon, Judge Walker questioned the defendants’ standing.

In the past, conservative members of the high court have taken narrow views about who has standing in appeals. No matter how much Justices Scalia, Thomas, Roberts and Alito may despise the idea of same-sex marriage, allowing this group to appeal the case when the named defendants have declined to do so would go against precedent.

—  David Taffet

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

Democratic AG candidate says constitutional amendment eliminates all marriages in Texas

Barbara Ann Radnofsky
Barbara Ann Radnofsky

You gotta love Barbara Ann Radnofsky. Why? Well, first of all, she’s basically accusing Texas Attorney General Greg Abbott of being a complete idiot.

Radnofsky, who’s running for AG as a Democrat in 2010, claims Texas’ constitutional amendment banning same-sex marriage, approved by voters in 2005, actually invalidates all marriages in the state because of the way one of its clauses is worded, The Star-Telegram reports today. And Radnofsky blames Abbott, a Republican who’s been a strong supporter of the amendment, for not catching the error. The clause was designed to prevent same-sex domestic partnerships and civil unions, but Radnofsky says it actually opens the door to all sorts of marriage-related legal action. Here’s the clause she’s referring to, with key words bolded:

This state or a political subdivision of this state may not create or recognize any legal status identical or similar to marriage.”

Radnofsky, who worked for a powerful Houston law firm for decades before retiring a few years ago, calls the clause a “massive mistake” that “eliminates marriage in Texas.” She blames Abbott and says he should acknowledge the error and apologize. She also says another constitutional amendment might be required to fix it. She says she voted against the amendment anyway and didn’t realize the mistake until she started closely studying the Texas Constitution in preparation for her campaign.

“You do not have to have a fancy law degree to read this and understand what it plainly says,” Radnofsky tells The S-T. “Whoever vetted the language in [clause] B must have been asleep at the wheel.”

Radnofsky is scheduled to appear at 6:30 tonight at the Tarrant County Young Democrats Gubernatorial Forum at TCU. But I don’t even need to go. She’s already got my vote.

—  John Wright