Quote of the Day: Pat Carlson

Pat Carlson

“There is a continual effort by the homosexual community to push their agenda on the rest of us. The bottom line is they are trying to destroy traditional marriage as we know it in the country and make their lifestyle the norm. They make it seem that anybody who has a problem with it is homophobic.”

Pat Carlson, president of the Texas Eagle Forum, in a Star-Telegram article about marriage equality demonstrations on Valentine’s Day in Texas

—  John Wright

Prop 8 case sent to Calif. Supreme Court

LGBT advocates frustrated over delay

Lisa Keen  |  Keen News Service

A 9th Circuit U.S. Court of Appeals panel surprised many Proposition 8 observers Tuesday, Jan. 4 when it suddenly issued five documents relating to the case.

But there was no decision Tuesday in Perry v. Schwarzenegger, the landmark case testing whether voters in California violated the U.S. Constitution when they amended the state constitution to ban marriage licenses for same-sex couples.

The bottom line of the documents was that the three-judge panel that heard arguments in an appeal of the case punted a critical question regarding legal standing to the California Supreme Court.

The appellate panel said it would not rule on the constitutionality of Proposition 8 until it gets a ruling from the California Supreme Court as to whether Yes on 8 proponents of the initiative have an “authoritative” entitlement to represent the voters who passed the initiative in the appeal in federal court.

The announcement frustrated and disappointed many.

“It is frustrating that this will slow the case down, especially since there is nothing in California law that gives initiative proponents the power to force an appeal when the official representatives of the state have determined that doing so is not in the best interests of the state,” said Shannon Minter of the National Center for Lesbian Rights.

The development struck some as odd. It appears the federal court is asking a state court whether Yes on 8 has standing to appeal a lower federal court ruling that struck down Proposition 8.

“I don’t think it was necessary to ask the California Supreme Court to rule on that issue,” said Minter, “and I am disappointed the Ninth Circuit did so.” But Ted Olson, a lead attorney on the team challenging Proposition 8, said it’s not uncommon.

And it was not really a surprise to learn the panel is struggling with the question of standing. During oral argument on Dec. 6, all three judges seemed troubled by the idea that a state governor or attorney general could, in essence, acquire an ability to veto a measure passed by voters by simply refusing to defend a challenge to its constitutionality in court. The California constitution does not provide the governor or attorney general a right to veto voter-passed initiatives.

Both Judge Stephen Reinhardt, widely perceived to be the most liberal of the panel, and Judge Randy Smith, the most conservative, seemed concerned that the governor and attorney general’s refusal to appeal the district court decision “does not seem to be consistent” with the state’s initiative system. Judge Michael Hawkins expressed frustration during arguments that the panel might be prevented from rendering a decision about the constitutionality of Proposition 8 “so it’s clear, in California, who has the right to marry and who doesn’t.” The panel seemed prepared, on Dec. 6, to ask the California Supreme Court to weigh in on the issue — and it’s somewhat curious that they waited one month before actually doing so.

In its 21-page order to the California Supreme Court, the three-judge panel asked the state court to determine whether Yes on 8 proponents have “rights under California law … to defend the constitutionality of [Proposition 8] … when the state officers charged with the laws’ enforcement … refuse to provide such a defense.”

Olson, in a telephone conference call with reporters soon after the court released its order, said that, if the California Supreme Court determines that there is no authority under state law for Yes on 8 to have standing to represent voters in the appeal, the 9th Circuit would be bound to accept that determination. However, the ruling on standing could still be appealed to the U.S. Supreme Court, he said.

If the California Supreme Court determines Yes on 8 does not have standing and the 9th Circuit rules accordingly, then the decision of U.S. District Court Judge Vaughn Walker on Aug. 4 will become the law throughout California, making it possible for same-sex couples to obtain marriage licenses.

Judge Walker ruled that Proposition 8 violates the U.S. Constitutional guarantees to equal protection and due process. Although neither the attorney general nor the governor provided any defense for the initiative during the trial last January, Walker did allow Yes on 8 proponents to intervene in the trial as defenders of the measure. But the appeals panel indicated that standing in the district court does not necessarily mean Yes on 8 has standing to appeal.

If Yes on 8 does appeal a loss on the issue of standing to the U.S. Supreme Court, and the high court rules in its favor, it would then most likely send the case back to the 9th Circuit for a ruling on constitutionality.

Meanwhile, among its other documents Tuesday, the 9th Circuit panel issued a 16-page opinion that Imperial County, Calif., does not have standing to appeal the district court decision itself. The panel said it was denying the county’s claim for standing on different grounds than did Judge Walker. The panel held that, because the county simply administers the state’s marriage law, it does not have any “interest on its own” to defend. The county has 14 days in which to appeal the panel’s ruling on standing.

The panel’s formal question to the California Supreme Court is: “Whether under Article II, Section 8 of the California Constitution, or otherwise under California law, the official proponents of an initiative measure possess either a particularized interest in the initiative’s validity or the authority to assert the State’s interest in the initiative’s validity, which would enable them to defend the constitutionality of the initiative upon its adoption or appeal a judgment invalidating the initiative, when the public officials charged with that duty refuse to do so.

“If California does grant the official proponents of an initiative the authority to represent the State’s interest in defending a voter-approved initiative when public officials have declined to do so or to appeal a judgment invalidating the initiative,” states the order, “then Proponents would also have standing to appeal on behalf of the State.

“This court is obligated to ensure that it has jurisdiction over this appeal before proceeding to the important constitutional questions it presents,” says the order, “and we must dismiss the appeal if we lack jurisdiction. The certified question therefore is dispositive of our very ability to hear this case.

“It is not sufficiently clear to us, however, whether California law does so,” said the panel. “In the absence of controlling authority from the highest court of California on these important questions of an initiative proponent’s rights and interests in the particular circumstances before us, we believe we are compelled to seek such an authoritative statement of California law.”

Today’s development will, of course, delay the 9th Circuit panel’s decision on the merits of the case — whether voters can withhold marriage licenses from gay couples while granting them to straight couples.

“Further delay in restoring the freedom to marry in California is a lamentable hardship on couples,” said Evan Wolfson, head of the national Freedom to Marry group. “But I am confident that we will regain the freedom to marry in California soon.”

NCLR’s Minter agreed.

“I am confident the California Supreme Court will hold that California law does not give initiative proponents any special power to override the decisions of the state’s elected representatives,” said Minter. “In the meantime, however, Proposition 8 remains on the books, and every day that goes by, LGBT people in California are denied the freedom to protect their families and express their love and commitment through marriage. This will delay,” he said, “but not deny, the day that Proposition 8 is gone for good.”

The full text of the order is below.

© 2011 Keen News Service. All rights reserved.

CA9Doc 292

—  John Wright

WATCH: Uncle says murdered teen wasn’t gay

Joshua Wilkerson’s uncle tells KHOU that the murdered 18-year-old from Pearland wasn’t gay. (The story doesn’t start until about halfway through the above video.)

Hermilo Vildo Moralez, 19, who is accused of beating Wilkerson to death with a wooden rod before burning his body, told authorities that Wilkerson made sexual advances toward him.

“Everything you hear, don’t judge a book by its cover,” said Wilkerson’s Uncle John Crochet. “This guy is not human, so don’t believe what he’s saying. …

“There had been some accusations by this animal that some sexual advances were made. We have no reason to believe that would have ever happened. The bottom line is whatever happened, he didn’t deserve to die,” said Crochet.

KHOU also reports that police believe Moralez may not have acted alone. Someone apparently set up a bogus Facebook page for Wilkerson while Moralez was already in custody saying Wilkerson was gay, hated negroes and was a fan of Justin Bieber.

—  John Wright

Task Force: GOP majority in House doesn’t necessarily mean ‘blockade on LGBT rights’

Rea Carey, executive director of the National Gay and Lesbian Task Force, issued the following statement tonight on the shift in the balance of power in Congress:

“We’ll cut to the chase: The shift in the balance of power will very likely slow advancement of lesbian, gay, bisexual and transgender rights legislation in Congress. Does this mean a blockade on LGBT rights? Not if we can help it. Fact is, our community has always had to fight — and fight hard — for equality. This is nothing new to us. But here’s another fact: There are Americans, from every part of the country, from every background, from every political leaning and of every faith, who support equality for LGBT people — and those numbers grow bigger every day.

“No matter what the political breakdown is in Washington, the Task Force will continue to identify and work with all fair-minded members of Congress who are willing to support and defend equality for LGBT people. Through our New Beginning Initiative, we will continue to push for the administration and its agencies to make tangible changes that benefit lesbian, gay, bisexual and transgender people and our families — changes that can be done without Congress. We will continue working with local partners in communities across the country to secure equality. Bottom line: While political winds and players may shift, the fundamental needs of the people do not. No matter who is in office, people need jobs, protection from discrimination, a roof over their heads, a way to feed their families, a fair shake. No one should settle for less — we won’t.”

—  John Wright

SLDN advises caution despite Pentagon announcement; Dan Choi attempts to re-enlist

Despite the Pentagon’s announcement Tuesday that military recruiters have been told they must accept gay applicants, the Servicemembers Legal Defense Network continues to advise caution.

“During this interim period of uncertainty, service members must not come out and recruits should use caution if choosing to sign up,” SLDN Executive Director Aubrey Sarvis said in a statement Tuesday afternoon. “The ‘don’t ask, don’t tell’ law is rooted in any statement of homosexuality made at anytime and to anyone. A higher court is likely to issue a hold on the injunction by Judge Phillips very soon. The bottom line: if you come out now, it can be used against you in the future by the Pentagon. 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. Given the uncertainty in the courts, we urge the Senate to act swiftly next month on repeal when they return to Washington.”

Of course, if you’ve already been discharged for being gay, you don’t have much to lose. Among those who plan to try to re-enlist in the wake of the Pentagon announcement is Lt. Dan Choi, according to his Twitter feed:

—  John Wright