Calif. court mulls appeal rights of Prop 8 backers

LISA LEFF | Associated Press

SAN FRANCISCO — California’s same-sex marriage ban endured its latest legal test Tuesday as the state’s high court grilled attorneys on whether Proposition 8′s backers have legal authority to appeal a federal ruling that overturned the voter-approved measure.

The tenor of the justices’ questioning during the more than hour-long hearing often leaned in favor of arguments by backers of the ban, who argue that the state Constitution gives ballot initiative proponents legal authority to defend their measures in court.

On that critical question, several justices noted that the California Supreme Court always has, as a matter of practice if not written policy, allowed the sponsors of ballot questions to appear before it when their measures were challenged.

“Never in any recorded (case) have proponents been denied the right to advance their interests,” Associate Justice Kathryn Werdegar noted during the closely watched arguments. “The present state of California law is we allow liberal intervention.”

The Supreme Court is examining the scope of the power afforded the official backers of ballot initiatives at the request of a federal appeals court that is reviewing a federal judge’s year-old ruling that Proposition 8 violates the constitutional rights of same-sex couples.

The 9th U.S. Circuit Court of Appeals has expressed doubts about the ability of Proposition 8′s sponsors to challenge the lower court ruling absent the involvement of California’s governor or attorney general, both of whom agreed the ban was unconstitutional and refused to appeal.

But the 9th Circuit punted the question to the California Supreme Court earlier this year, saying it was a matter of state law. Although the appeals court still must decide for itself if Proposition 8′s supporters are eligible under federal court rules to appeal the ruling that struck down the ban, the state court’s input is likely to weigh heavily in its decision.

If the state Supreme Court says the ban’s proponents did not have standing to appeal, and if the 9th Circuit and ultimately the U.S. Supreme Court ultimately agree, it could clear the way for same-sex marriages to resume in California.

If the court holds the proponents were qualified to appeal and the 9th Circuit agrees, the appeals court would then weigh the broader civil rights implications of Proposition 8. A decision on the ban’s constitutionality is expected to be appealed to the U.S. Supreme Court.

While agreeing that the state Supreme Court has never refused to give initiative proponents a seat at the defense table, several justices quizzed Charles Cooper, an attorney for the coalition of religious and conservative groups that sponsored Proposition 8, on whether there was a difference between the court using its discretion to do so and issuing an opinion that would be binding on future courts.

Chief Justice Tani Cantil-Sakauye observed that in the vast majority of cases in which initiative backers have been allowed to defend their measures, they have been “standing shoulder-to-shoulder” with the attorney general’s office, not acting on their own.

Cooper agreed that he was seeking to remove some of the court’s discretion, but said the justices could draft their guidance so it would only apply to situations, such as with Proposition 8, where state officials have refused to defend laws already approved by voters.

Theodore Olson, the attorney representing the two same-sex couples who successfully sued in federal court to strike down Proposition 8, argued that permitting initiative sponsors to step in under such circumstances would infringe on the authority of elected state officials.

“There is nothing in the California Constitution or the statutes that give private citizens the right to take on the attorney general’s constitutional responsibility to represent the state in litigation in which the state or its officers are a party,” Olson said.

“Is there any authority for the attorney general and the governor to second-guess a majority of the population?” Associate Justice Ming Chin interrupted.

Olson answered yes, explaining that the attorney general is obligated not to defend laws he or she judges to be unconstitutional.

Associate Justice Goodwin Liu, who was sworn in on Thursday and serving his first day on the court Tuesday, picked up the line of questioning.

“It seems to me the 9th Circuit has set up a hoop the initiative proponents must jump through to get to appeal,” Liu said. “Given the fact that initiative proponents clearly would have standing to appeal if this litigation was in state court … why can’t we read (the U.S. Constitution) to give the initiative proponents what they need to jump through that hoop?”

Associate Justice Joyce Kennard, who along with Werdegar was in the 4-3 Supreme Court majority that briefly cleared the way for same-sex marriages in California before voters passed Proposition 8, also questioned how the court could deny initiative sponsors the right to appeal in cases where state officials have refused to defend a law.

“It would appear to me that to agree with you would nullify the great power the people have reserved for themselves pertaining to proposing and adopting state Constitutional amendments,” she said.

Werdegar suggested that the court could tell the appeals court that it ordinarily grants initiative proponents the right to defend their measures, but stop short of establishing a new legal precedent.

The court has 90 days in which to issue its opinion.

—  John Wright

Anti-gay El Paso pastor faces IRS complaint for using tax-exempt church to fight DP benefits

Pastor Tom Brown of Word of Life Church was the driving force behind a ballot measure to repeal DP benefits in El Paso.

An anti-gay El Paso pastor is accused of illegally using his tax-emempt church to advocate political causes. The Rev. Tom Brown of Word of Life Church, who spearheaded last year’s ballot initiative rescinding domestic partner benefits for city employees, has now launched a petition to  recall council members who voted to restore DP benefits this June. The El Paso Times reports that Brown announced the recall petitions to his congregation last month and has written in support of them on his Tom Brown Ministries website, prompting a complaint to the IRS from Americans United for Separateion of Chruch and State:

The Rev. Barry W. Lynn, executive director of Americans United, said his group files such complaints against about “eight or 10″ tax-exempt groups nationwide each election cycle.

His group has received several complaints about Brown’s activities from El Paso residents.

“This seems so over-the-top, so brazen an attempt to involve himself in a partisan political campaign,” Lynn said, explaining his group’s reason for filing the complaint.

When Brown’s wife ran unsuccessfully for a City Council seat in May on an anti-DP benefits platform, she announced her campaign from the pulpit of the church and asked people to meet her in the vestibule if they wanted to volunteer. But it’s unclear if anyone filed a complaint about that incident. Brown denies all of the allegations and says the IRS complaint amounts to “harassment and persecution of anti-religious people against people of faith.”

In related news, the El Paso City Council voted Tuesday to hold a charter election in November 2012. One council member has proposed an anti-discrimination charter amendment that would prohibit the city from denying DP benefits to gay and lesbian employees.

The council, which initially approved DP benefits in 2009, voted to reinstate them last month after a federal judge upheld the ballot initiative rescinding them.

—  John Wright

Anti-gay El Paso candidate says earthquake and tsunami in Japan were a curse from God

On Monday we told you how several anti-gay candidates are running for El Paso City Council in the wake of the ongoing battle over domestic partner benefits for municipal workers.

Well, one of those anti-gay candidates, Malcolm McGregor III, told ABC 7 he believes the tsunami and earthquake in Japan were a curse from God.

“Japan had built tsunami walls along their coasts but this tsunami was bigger than that. No matter what you say, they either weren’t blessed with protection or they were cursed with an earthquake,” McGregor said. “God did say, Christ did say that earthquakes would increase in the last days and that’s what we’re seeing.”

McGregor is part of the group El Pasoans for Traditional Family Values, which sponsored a successful ballot initiative to rescind DP benefits in November, after the benefits were approved by the City Council. McGregor is also a defendant in the pending federal lawsuit challenging the constitutionality of the ballot initiative.

—  John Wright

The Nooner: El Paso benefits battle, Houston GLBT Political Caucus, Ricky Gervais

Your lunchtime quickie from Instant Tea:

• Federal judge blocks enforcement of anti-gay El Paso ballot initiative, questions definition of “traditional family values.” Gay rights group protests outside Barnes & Noble during book-signing by pastor who was behind initiative.

• New president of Houston GLBT Political Caucus discusses group’s agenda.

• Texas ENDA introduced again but unlikely to pass.

• Slain gay Portugese journalist’s family dumps ashes down Times Square subway grate.

• Did host Ricky Gervais go too far at the Golden Globes? (video above)

—  John Wright

El Paso may put DP benefits back on ballot

After a ballot measure passed in November to rescind domestic partner benefits for El Paso employees, the City Council is considering another ballot measure to restore them. The November ballot measure sponsored by religious groups aimed to take away benefits for the partners of gay and lesbian employees. However, because it was so vaguely worded, the ballot measure also threatened benefits for the partners of retired city workers, and it’s now the subject of a federal lawsuit.

The El Paso Times reports on the latest development:

The El Paso City Council on Tuesday introduced a proposed ordinance for a May ballot initiative that would restore health benefits to gay and unmarried partners of city employees.

The public rescinded those benefits in the Nov. 2 election, but they remain in effect while the courts hear a lawsuit in the matter.

The council did not discuss the proposed ordinance or take public comment on it. A public hearing will be held in coming weeks. If the City Council does not vote to put the matter on the ballot, supporters still can do so by gathering enough signatures on a petition.

—  John Wright

New Mexico may recognize same-sex marriage

New Mexico Attorney General Gary King

New Mexico Attorney General Gary King says same-sex marriages performed elsewhere may be valid in his state.

“A comprehensive legal analysis by my office concludes that valid same-sex marriages in other states would likely be valid in New Mexico,” King said.

According to the Santa Fe New Mexican, the opinion hasn’t been tested in court. However, an attorney general’s opinion carries quite a bit of weight.

New Mexico’s new governor, Susana Martinez, opposes same-sex marriage. Her predecessor, Bill Richardson, was unsuccessful getting a marriage-equality bill through the legislature.

Maryland’s attorney general has issued a similar ruling. New York and Rhode Island both recognize same-sex marriages performed in other states.

—  David Taffet

Now that he’s screwed 200 out of health benefits, El Paso bigot Tom Brown wants to be left alone

Pastor Tom Brown

Pastor Tom Brown robbed hundreds of people of health insurance when he spearheaded a ballot measure that overturned domestic partner benefits for El Paso city employees. But now Brown wants the LGBT community and its supporters to just forget about it and stop protesting outside his Word of Life Church. KFOX Channel 8 reports:

After the council passed the ordinance, Pastor Tom Brown quickly gained enough signatures to send the decision of whether or not domestic partners should get health care benefits to the voters and the majority sided with him.

“Let’s all move on,” said Brown.

The group of protesters Tuesday, mostly composed of radio talk show hosts, said that is not going to happen.

“Don’t you think it’s a little late; the election’s over with,” said Brown.

The group said it’s never too late and this is just the beginning of what they call “Love” rallies.

“To me that’s not love when you mock other peoples’ lives,” said Brown.

The pastor said he hopes the protesters pick a better and more respectful location next time.

“This is a place where people have their particular views, and they shouldn’t be put to ridicule because a particular church doesn’t correspond to the public view,” said Brown.

Even The Wall Street Journal has taken notice of the DP benefits controversy in El Paso. The WSJ story posted Monday says the ballot initiative could eventually threaten health benefits for up to 6,000 people,, including retirees, because it was so vaguely worded. You see, Brown’s group couldn’t find an attorney to work on the initiative, so they just wrote it themselves. Now, the city’s labor unions are preparing a lawsuit, and the City Council is looking at ways to overturn the initiative:

The pastor, Tom Brown, is threatening to fight officials if they attempt to reinstate the benefits for gay partners. He has proposed another ballot initiative which would strip the city council of its power to amend or rescind voter-approved measures.

“I’m feeling a call from God to get more involved in our government,” Mr. Brown said in an interview.


—  John Wright

El Paso City Council to vote today on overturning ballot initiative that rescinded DP benefits

You gotta love this story out of El Paso.

Last year, the City Council voted to add health benefits for the unmarried partners of city workers, both gay and straight.

Then some anti-gay nutjobs got an initiative on the ballot to rescind the benefits, and it passed.

However, city officials say the wording of the initiative was unclear, likely confusing voters and possibly outlawing benefits for the spouses of retirees. So today the council is poised to overturn the initiative and place a new one on the ballot in May, The El Paso Times reports.

Of course backers of the initiative are crying foul, saying it’s not about the gay thing anymore, but the “will of the people.” And ordinarily we might agree with them, but not when a popular vote has been used to take away people’s rights.

Speaking of which, as long as we’re overturning ballot initiatves based on confusing language, maybe someone ought to take a look at that constitutional amendment that passed a few years back. Sure sounds like it actually banned heterosexual marriage.

—  John Wright

Removal of Iowa judges may inspire similar efforts

MICHAEL J. CRUMB and NOMAAN MERCHANT | Associated Press

DES MOINES, Iowa — Emboldened by the success of a ballot initiative to oust Iowa judges who supported gay marriage, conservative activists are looking for new ways to use the power of the vote to strike back against the courts.

Judicial-removal campaigns have generally been difficult to sell to the public. But now some groups view them as a potential tool to influence the judiciary on gay rights, abortion and other divisive social issues.

Organizers of the Iowa campaign had several important advantages: a well-funded TV campaign, a grass-roots structure and an electorate that was receptive to their message.

“For those who impose what we perceive as an immoral agenda, we’re going to take them out,” said David Lane, executive director of AFA Action, the political arm of Mississippi-based American Family Association, which contributed about $100,000 to the Iowa campaign. He said the group would do so again wherever judges “impose their will on free people.”

Iowa was one of at least four states where groups sought to remove judges in last Tuesday’s election, but it was the only place where the effort succeeded.

The anti-abortion group Kansans For Life failed to remove four Supreme Court justices for their decisions regarding abortion clinics.

In Colorado, three high court members withstood a removal campaign focused on their tax decisions. And in Illinois, a Supreme Court justice survived an attempt to oust him because he overturned a cap on medical malpractice damages.

“There’s a very small number of extremely emotional issues that can cause voters to weigh in and take judges off the court,” said Charlie Hall, spokesman for Justice at Stake, a nonpartisan group that campaigns to keep the courts impartial. “For the most part, it’s still the rare exception.”

Hall said gay marriage rulings are likely to cause the biggest backlashes in any future elections, but that abortion also could motivate many voters.

Brian Brown, executive director of the National Organization for Marriage, said earlier referendums in California and Maine, plus the Iowa campaign, prove that gay marriage is an issue that will motivate voters to act.

In Maine, voters overturned the Legislature’s passage of a bill legalizing gay marriage. And in California, voters approved Proposition 8 banning gay marriage, but that measure is being appealed.

Brown, whose group spent $235,000 on the Iowa effort, said the effort succeeded because it involved extensive TV ads, campaign phone calls, a 20-city bus tour, and outreach at churches and other venues.

“People do care that judges are forcing their will on people,” he said.

Brown said the group may organize future campaigns to remove the other four Iowa justices involved in the same-sex marriage ruling. And they might take on judges in other states, too.

Brown said his group’s focus is now to get a constitutional amendment on the ballot in Iowa to give voters a chance to overturn the court’s decision and redefine marriage as being between one man and one woman.

Lane, of AFA Action, said the distribution by conservative churches of 200,000 voter guides was a big factor that will be effective in future judge-recall efforts.

“No question it would work,” Lane said.

Troy Newman, president of the Wichita, Kan.-based anti-abortion group Operation Rescue, said Iowa’s vote could be a model for more challenges around the nation. He said his group plans to get involved in other state judicial races but has not decided which ones to target.

Operation Rescue, which also opposes gay marriage, made phone calls and sent volunteers to lobby Iowa voters, Newman said. He predicted that judicial challenges, especially over gay rights and possibly abortion, would happen more frequently due to rising voter anger.

“2010 was the beginning of the beginning,” Newman said.

Gay rights groups and some legal experts do not expect a wave of judge removals, but they worry the Iowa case was meant to intimidate other courts.

Kevin Cathcart, executive director of New York-based Lambda Legal, which pursued the challenge of Iowa marriage laws that led to the court’s decision, said he sees the campaign as “a warning shot across the bow of judges.”

Lamda Legal will not stop pursuing its goals in the courts, Cathcart said, but the organization needs to examine what can be done to prevent more removals.

“I still believe the courts have been our community’s best avenue to extending civil rights and moving closer to equality,” he said. “While it is definitely a huge bump in the road … we need to figure out how to do better through voter education.”

Next time a removal effort begins, he added, Lamda Legal might wage a campaign to explain to voters the importance of an independent judiciary.

Rachel Paine Caufield, a law professor at Drake University in Des Moines, said the Iowa ruling could have a “really chilling” effect on judges nationwide. She speculated that some potential judicial candidates will opt against seeking jobs on the bench.

Connie Mackey, president of the Washington, D.C.-based Family Research Council’s political action committee, said the group contributed $60,000 to the Iowa campaign and was eager to challenge justices in Iowa or elsewhere whose decisions are out of line with the group’s agenda.

“Where we can play a role, and where we feel we can have a shot at taking those judges out, we certainly will jump in,” she said.

—  John Wright

El Paso voters rescind domestic partner benefits for city workers — and possibly for retirees too

El Paso was home to one of the few, if not the only, anti-gay initiative on the ballot anywhere in the U.S. on Tuesday. And The El Paso Times reports that the measure to roll back domestic partner benefits for city employees passed easily:

The ballot initiative was supported by conservative religious groups that took aim at the city’s domestic partners ordinance from the time that it was passed by the City Council last year. But the way the initiative was worded caused confusion among some voters — and questions about how city officials will implement it.

“I’m sure there will be some legal action,” Mayor John Cook said.

Fewer than two dozen city employees receive the benefit. Opponents say it sends the message that the city approves of homosexuality and of heterosexual couples living out of wedlock.

And the initiative struck a chord with a majority of the El Paso electorate.

The story goes on to say there are problems with the wording of the initiative, which says, “The city of El Paso endorses traditional family values by making health benefits available only to city employees and their legal spouse and dependent children.”

The meaning of “endorse” is unclear, according to the mayor, and city legal staff says the measure could be interpreted to exclude retirees from DP benefits.

Good. Let’s hope it gets tied up in court for a long time.

—  John Wright