BREAKING: Appeals court won’t rehear Prop 8

Full 9th Circuit opts not to reconsider panel’s ruling that Calif. marriage ban is unconstitutional; case now likely headed for Supreme Court

LISA KEEN  |  Keen News Servic

A glimmer of politics showed through Tuesday when the full 9th U.S. Circuit Court of Appeals declined a request from supporters of California’s ban on same-sex marriage to review a three-judge panel’s ruling that Proposition 8 is unconstitutional.

In a dissent from the order refusing to have the full 9th Circuit hear the landmark Perry v. Brown case, three judges signed onto a dissent, noting that just a few weeks ago, President Barack Obama had “ignited a media firestorm by announcing that he supports same-sex marriage as a policy matter.” The three said the refusal to review the circuit panel’s decision “silenced” President Obama’s suggestion that the nation continue its “conversation” about same-sex marriage “in a respectful way.”

All three dissenters were appointees of Republican presidents.

But politics or not, the refusal to give Perry v. Brown full circuit court review is a major victory for supporters of marriage equality and means almost certainly that the “final chapter” in the historic litigation can now begin, said Chad Griffin, co-founder of the American Foundation for Equal Rights, which organized and funded the lawsuit.

Attorneys for Proposition 8 supporters said they will now file a petition to the U.S. Supreme Court to review the 9th Circuit decisions. Ted Olson, a lead attorney for the gay couples in Perry, said that, even if the Supreme Court refuses to hear that appeal, the litigation would be a “complete victory” for the plaintiff couples.

One looming question for the Perry case is whether the Supreme Court, if it accepts the case, would review the 9th Circuit panel’s very narrow reasoning to strike down Proposition 8 — or the federal district court’s more sweeping reasoning concerning equal protection, due process and the fundamental right to marry. While Olson said upholding a narrow reasoning might still affect same-sex marriage in some states beyond California, upholding the broader reasoning could affect every state.

With last week’s 1st Circuit decision striking a core section of the Defense of Marriage Act also heading to the nation’s highest court, it is now likely the Supreme Court will have two major same-sex marriage cases on its docket in October.

The 9th Circuit case, if accepted, could ask whether states can take away the right to marry from same-sex couples or whether same-sex couples have a fundamental right to marriage and to be treated equally under marriage laws. The 1st Circuit case, if accepted, would ask whether the federal government can refuse to recognize marriages licensed by states to same-sex couples.

David Boies, the other lead attorney for the Perry couples, said that, while the questions in the two cases are “distinct,” the issues are closely related and could — if both are accepted — be heard very close together.

The three-paragraph order June 5 stated that the request for a full court review “failed to receive a majority of the votes” of active judges. It also noted that the order would be stayed for 90 days to enable proponents of Prop 8 to file an appeal to the U.S. Supreme Court.

The dissenting judges did not mince words in their three-paragraph dissent. They said the circuit panel’s 2-1 decision striking down Prop 8 was a “gross misapplication” of the U.S. Supreme Court’s decision in Romer v. Evans. In that 1996 case, the Supreme Court said states could not pass laws that excluded gays from protection based on animus against the group.

The dissenters said refusing to give full 9th Circuit review to Perry v. Brown means the Ninth Circuit judges “have now declared that animus must have been the only conceivable motivation for a sovereign state to have remained committed to a definition of marriage that has existed for millennia.”

Proponents of Prop 8, known as Yes on 8, filed the appeal seeking review by the full 9th Circuit, asking it to overturn a decision by the panel in February. That panel decision found that California’s ban on same-sex marriage violates the U.S. Constitution by stripping from same-sex couples a right they had (to marry) prior to passage of Prop 8. In order for a limited full court review to have been granted, at least 14 of the circuit’s 26 active judges would have had to say another review is warranted.

The Perry v. Brown lawsuit is led by famed conservative attorney Olson and pre-eminent liberal attorney David Boies, and organized and funded by AFER.

In the case, two same-sex couples sued the state after being denied marriage licenses after the voter-approved constitutional ban on same-sex marriage went into effect in November 2008.

U.S. District Court Judge Vaughn Walker ruled, in August 2010, that banning same-sex couples from obtaining marriage licenses violates the U.S. Constitution’s guarantees of equal protection and due process. He agreed to delay enforcement of the decision, pending an appeal by Yes on 8 attorneys to the 9th Circuit.

In February 2012, a three-judge panel of the 9th Circuit, in a 2-1 vote, upheld Walker’s decision but on much more narrow grounds. The panel majority — Judges Stephen Reinhardt and Michael Hawkins — said Proposition 8 improperly removed from a group of citizens (gays) a right they already enjoyed (marriage) without sufficient justification.

Reinhardt and Hawkins submitted a paragraph with the June 5 refusal order, saying they were “puzzled” by their dissenting colleagues’ “unusual reliance on the President’s views regarding the Constitution, especially as the President did not discuss the narrow issue that we decided in our opinion.”

“We,” said Reinhardt and Hawkins, “held only that under the particular circumstances relating to California’s Proposition 8, that measure was invalid. In line with the rules governing judicial resolution of constitutional issues, we did not resolve the fundamental question that both sides asked us to: whether the Constitution prohibits the states from banning same-sex marriage. That question,” they said, “may be decided in the near future, but if so, it should be in some other case, at some other time.”

The “particular circumstances” they referred to were that the California Supreme Court had ruled, in May 2008, that the state Constitution required that same-sex couples be able to obtain marriage licenses the same as straight couples. Thousands of couples did begin obtaining marriage licenses, but, in November of that year, voters approved Proposition 8, amending the state constitution to explicitly ban the recognition of same-sex marriage.

While attorneys and activists uniformly called the Feb. 7 panel decision a major victory, they acknowledged that the decision stopped short of saying that same-sex partners, like straight partners, have a “fundamental right to marry.” Instead, the decision said Prop 8 deprived same-sex partners only of the “right to use the designation of ‘marriage.’” If it had ruled same-sex couples had a fundamental right to marry, said Lambda Legal Defense’s legal director Jon Davidson, “the marriage laws of 44 states would have been cast into doubt….” And by rendering such a relatively narrow ruling, said Davidson and others, the panel reduced the likelihood the U.S. Supreme Court would take the case.

“The fundamental right to marry, as protected by the US Constitution,” said Williams Institute legal scholar Jenny Pizer, “has to have the same contours throughout the country. So a decision concluding that same-sex couples have the same fundamental right as different-sex couples would call into question all the marriage restrictions states currently impose.”

© 2012 by Keen News Service. All rights reserved.

—  John Wright

California Senate wants to make it more difficult to use “reparative” therapy

California state capitol

Members of the California legislature want to make it more difficult for therapists to use junk science in their practices when it comes to treating gays and lesbians.

California Senate Bill 1172 or the “Sexual Orientation Change Efforts” bill would prohibit physicians and surgeons, psychologists, marriage and family therapists, educational psychologists, clinical social workers, and licensed professional clinical counselors “from performing sexual orientation change efforts, as defined, in the absence of informed consent of the patient.”

Reparative or conversion therapy that attempts to change the sexual orientation of gay people to straight would be prohibited for minors.

Adults would have to sign a consent form acknowledging that this “therapy” is not recognized by any licensing body and could lead to depression, anxiety and self-destructive behavior.

The bill is out of committee.

Truth Wins Out is a nationwide organization based in Vermont that works to expose “ex-gay” ministries and therapists as fraudulent.

—  David Taffet

BREAKING: Appeals court strikes down Prop 8

Experts say ruling narrowly crafted to avoid Supreme Court review

LISA KEEN  |  Keen News Service

Calling Proposition 8 “remarkably similar” to Colorado’s anti-gay Amendment 2 in 1992, a divided federal appeals court panel in San Francisco ruled today that California’s same-sex marriage ban violates the federal Constitution.

It was, noted many attorneys working on the issue of equal rights for LGBT people, the first time a federal appeals court has issued a decision in favor of marriage equality for same-sex couples. And it was, as lead attorney Ted Olson put it, “a very significant milepost on the way to equality.”

In a 2 to 1 decision in Perry v. Brown, the 9th U.S. Circuit Court of Appeals panel noted that the rights at issue in this landmark case concerning the ability of voters to withdraw the right to marry from same-sex couples in California was essentially the same as the ability of voters in Colorado, in 1996, to withdraw from LGBT people the protection of laws prohibiting discrimination.

“Laws may be repealed and new rights taken away if they have had unintended consequences or if there is some conceivable affirmative good that revocation would produce,” noted the majority, “but new rights may not be stripped away solely because they are new.”

The California Supreme Court had ruled, in May 2008, that the state constitution required that same-sex couples be able to obtain marriage licenses the same as straight couples. But in November of that year, voters approved Proposition 8, an initiative that amended the state constitution to explicitly ban the recognition of same-sex marriage.

Quoting from the U.S. Supreme Court’s 2003 decision, Lawrence v. Texas, striking down laws barring sexual relations between same-sex partners, and referring to the 1967 U.S. Supreme Court decision, Loving v. Virginia, striking down bans on interracial marriage, the appeals panel noted that the “fact that the governing majority in a State has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice; neither history nor tradition could save a law prohibiting miscegenation from constitutional attack.”

Olson and co-lead attorney David Boies said the Ninth Circuit panel’s heavy reliance on decisions from the U.S. Supreme Court makes the panel’s ruling “extremely strong.”

“There’s a high likelihood,” said Olson, in an afternoon phone conference with reports, “that the Supreme Court will find [Perry v. Brown] very hard to ignore.”

Olson and Boies made clear that they have always considered the case to be one headed for the U.S. Supreme Court. They said the Yes on 8 coalition which successfully campaigned for Proposition 8 has 14 days in which to announce whether it is appealing the decision and to where. The Yes on 8 coalition could ask for appeal to the full 9th Circuit bench or go straight to the U.S. Supreme Court. Until Feb. 28, said Olson, a stay on the 9th Circuit panel’s decision is in effect.

Olson said that, while he expects Yes on 8 to seek an extension of the stay beyond Feb. 28, his legal team would oppose that extension.

The highly anticipated ruling also rejected a motion from Yes on 8 proponents to vacate the district court ruling of former Chief Judge Vaughn Walker because Walker had not disclosed, prior to presiding over Perry v. Brown (known as Perry v. Schwarzenegger at the time), that he was in a long-term relationship with a man.

And while attorneys and activists uniformly called today’s decision a major victory, the appeals court panel did stop short of saying that same-sex partners, like straight partners, have a “fundamental right to marry.” Instead, it said Proposition 8 deprived same-sex partners only of the “right to use the designation of ‘marriage.’”

“We therefore need not and do not consider whether same-sex couples have a fundamental right to marry, or whether states that fail to afford the right to marry to gays and lesbians must do so.”

“If the 9th Circuit had ruled that the fundamental right to marry protected by the Constitution is shared equally by same-sex couples,” said Lambda Legal Defense’s legal director Jon Davidson, “the marriage laws of 44 states would have been cast into doubt…” Such a broad ruling, he said, “in all likelihood would have resulted in Supreme Court review of the decision.”

“The fundamental right to marry, as protected by the US Constitution,” said Williams Institute legal scholar Jenny Pizer, “has to have the same contours throughout the country. So a decision concluding that same-sex couples have the same fundamental right as different-sex couples would call into question all the marriage restrictions states currently impose.”

An attorney on the Olson-Boies team said they think the 9th Circuit majority wanted to write as narrow decision as possible and minimize the likelihood that the Supreme Court would review the decision.

And, like the U.S. Supreme Court in the Colorado case, the 9th Circuit panel declined to examine whether it should apply the most stringent form of scrutiny — heightened scrutiny — to laws disfavoring gays and lesbians. Proposition 8, like Amendment 2, said the majority, failed to satisfy even the simplest rational level of review.

Walker, in his August 2010 decision, said Proposition 8 violated the federal equal protection clause because there was no rational basis for limiting the designation of marriage to straight couples. He also said it violated the federal due process clause because there was not compelling reason for the state to deny same-sex couples the fundamental right to marry.

The 2 to 1 majority opinion was written by Judge Stephen Reinhardt and joined by Judge Michael Hawkins. The partial dissent, by Judge Randy Smith, concerned the constitutionality of Proposition 8.

The majority said California’s Proposition 8 was more of a “surgical precision” attack than Colorado’s Amendment 2. Proposition 8, it said, attacked “one specific right: the right to use the designation of ‘marriage’ to describe a couple’s officially recognized relationship.”

The Ninth Circuit panel heard oral arguments concerning these key issues in the case in December 2010.

Yes on 8 attorneys argued during the January 2010 trial that the ban on same-sex marriage was justified because same-sex marriage would make children “prematurely preoccupied with issues of sexuality.”

Olson, arguing against Proposition 8, called that reasoning “nonsense” and said, “If believed, that would justify the banning of comic books, television, video games, and even conversations between children.” And during their 2008 campaign to pass Proposition 8, said Olson, Yes on 8 claimed the ban was justified to protect children from the idea that marriage between same-sex partners is OK.

As expected, the three-judge panel ruling agreed with a California Supreme Court ruling that Yes on 8, the coalition which successfully campaigned for the ban on same-sex marriage in 2008, did have legal standing to appeal Walker’s decision, even though state officials chose not to. The panel unanimously concluded it was “bound” by the state supreme court determination and that Yes on 8 did not “need not show that they would suffer any personal injury from the invalidation of Proposition 8” because “the State would suffer an injury….”

Kristen Perry, the lead plaintiff of the two couples challenging the law, said at a press conference today that the “dark walls of discrimination” are being dismantled. Her partner, Sandra Stier, spoke, as did one of their two sons who said, “With this ruling, in the eyes of the government, my family is finally normal.”

Plaintiff Paul Katami and his partner Jeffrey Zarrillo introduced Zarrillo’s parents, who have been married for more than 40 years.

Zarrillo’s father told the press conference that he was very proud of his son and his “soon-to-be son-in-law.”

Chad Griffin, head of American Foundation for Equal Rights (AFER), which has been funding the litigation against Proposition 8, dodged a question, asking him to comment on an effort underway, by a pro-marriage equality group, to overturn Proposition 8 through a ballot measure. But drew attention to attempts by opponents of same-sex marriage around the country who are trying such strategies as ballot measures and removing judges from office to overcome judicial rulings such as this one.

“We’re not at the end of the line yet,” said Olson, later in the press conference, “but I cannot overstate the importance of the decision today.”

© 2012 by Keen News Service. All rights reserved.

Here’s the full text of the decision:

Ninth Circuit Prop. 8 decision

—  John Wright

BREAKING: Prop 8 ruling expected Tuesday

The U.S. Court of Appeals for the Ninth Circuit is expected to rule Tuesday on the constitutionality of Proposition 8, California’s same-sex marriage ban. Below is the official announcement from the court’s public information office. Chris Geidner at Metro Weekly reports:

The long anticipated ruling is expected to address three issues: (1) whether former U.S. District Court Judge Vaughn Walker should have recused himself from hearing the case because he is gay and had a long-time partner with whom he was not married; (2) whether the proponents of Proposition 8 have the right to appeal Walker’s decision striking down Proposition 8 as unconstitutional when none of the state defendants chose to do so; and (3) whether, if Walker did not need to recuse himself and the proponents do have the right to appeal, Walker was correct that Proposition 8 violates Californians’ due process and equal protection rights guaranteed in the U.S. Constitution.

—  John Wright

Supreme Court hearing on Prop 8 to be televised

The seven-member California State Supreme Court will hear arguments Sept. 6, on whether state law gives the anti-gay group which pushed for passage of  Proposition 8, the voter approved state constitutional amendment banning gay marriage, the right to appeal a federal court decision declaring Prop 8 unconstitutional. And unlike the initial trial in Judge Vaughn Walker’s court, the Supreme Court hearing will be televised.

Court spokeswoman Lynn Holton said, “Because of public interest in the case, the court has approved a live statewide television broadcast of the arguments on the California Channel, a public affairs network.”

According to SF Appeal, should the sponsors succeed in their right to appeal, the case will go back to the 9th Circuit federal appeals court for review, a process that might take several months — just like everything else involving the court system.

However, the federal appeals court has said earlier this year that if the sponsors lack legal standing, the federal court will be required to dismiss the appeal.

The state high court has broadcast marriage equality-related arguments before, such as In re marriage Cases, was a California Supreme Court case with the dual holding that “statutes that treat persons differently because of their sexual orientation should be subjected to strict scrutiny.”

 

—  admin

What’s Brewing: Texas judge delays deportation hearing for gay, married Costa Rican immigrant

David Gonzalez and Mario Ramirez, via Stop The Deportations: The DOMA Project

Your weekday morning blend from Instant Tea:

1. A Houston judge on Thursday delayed a deportation hearing for a gay Costa Rican immigrant who’s fighting to stay in Texas with his husband. The judge delayed the proceeding for 35-year-old David Gonzalez until Aug. 31 based on a technicality, but also urged the two parties — Gonzalez’s attorney and U.S. immigration officials — to resolve the matter before then. Gonzalez married his husband, U.S. citizen Mario Ramirez, in California in 2008, but is unable to obtain a green card because of the Defense of Marriage Act. According to The Houston Chronicle, “The delay announced by the immigration judge Thursday means the couple will be able to celebrate the sixth anniversary of the day they met, Aug. 21, together without worrying that immigration agents will come knocking on their door.” Read more about the couple at Stop the Deportations: The DOMA Project.

2. The Obama administration has asked a federal appeals court to suspend its order from last week halting enforcement of “don’t ask, don’t tell.” In a brief filed Thursday, the U.S. Department of Justice asks the court to suspend the order by today, saying it wants to follow the timetable laid out in the DADT repeal act passed by Congress last year.

3. California Gov. Jerry Brown signed a bill Thursday making the state the first in the country to require schools to teach students about the contributions of LGBT people. The bill also prohibits instruction that reflects adversely on people because of their sexual orientation.

—  John Wright

Landmark gay history bill goes to Calif. governor

JUDY LIN | Associated Press

SACRAMENTO, Calif. — California lawmakers on Tuesday sent the governor a bill that would make the state the first requiring public schools to include the contributions of gays and lesbians in social studies curriculum.

The bill, passed on a party-line vote, adds lesbian, gay, bisexual and transgender people as well as people with disabilities to the list of groups that schools must include in the lessons. It also would prohibit material that reflects adversely on gays.

Democratic Assemblyman Tom Ammiano of San Francisco says SB48 is crucial because of the bullying that happens to gay students. Republicans called it a well-intentioned but ill-conceived bill and raised concerns that it would indoctrinate children to accept homosexuality.

“This bill will require California schools to present a more accurate and nuanced view of American history in our social science curriculum by recognizing the accomplishments of groups that are not often recognized,” said Assembly Speaker John Perez, the first openly gay speaker of the California Assembly.

The bill now goes to Gov. Jerry Brown, a Democrat, who has not said whether he would sign it. Former Gov. Arnold Schwarzenegger vetoed a similar bill in 2006.

Assemblyman Tim Donnelly, a Republican from Twin Peaks, said he was offended as a Christian that the bill was being used to promote a “homosexual agenda” in public schools.

“I think it’s one thing to say that we should be tolerant,” Donnelly said. “It is something else altogether to say that my children are going to be taught that this lifestyle is good.”

California law already requires schools to teach about women, African Americans, Mexican Americans, entrepreneurs, Asian Americans, European Americans, American Indians and labor. The Legislature over the years also has prescribed specific lessons about the Irish potato famine and the Holocaust, among other topics.

SB48 would require, as soon as the 2013-2014 school year, the California Board of Education and local school districts to adopt textbooks and other teaching materials that cover the contributions and roles of sexual minorities.

The legislation leaves it to local school boards to decide how to implement the requirement. It does not specify a grade level for the instruction to begin.

Opponents argued that such instruction would further burden an already crowded curriculum and expose students to a subject that some parents find objectionable. Assemblyman Chris Norby, R-Fullerton, said the bill micromanages the classroom.

“Our founding fathers are turning over in their graves,” Donnelly said.

The bill’s author, Sen. Mark Leno, D-San Francisco, said he hopes Brown will sign his bill. He dismissed arguments that the bill promotes certain sexual behaviors and said it removes censorship in textbooks.

“Bottom line, it’s only beneficial to share with students the broad diversity of the human experience and that our democracy protects everyone,” he said.

Before the Assembly vote, Perez pointed to a few contributions of gay people, including Friedrich von Steuben, one of George Washington’s military advisers who fled Prussia after he was hounded as a homosexual.

Von Steuben is credited with being one of the fathers of the Continental Army and teaching essential military drills.

He also cited Alan Turing, a mathematician who helped crack Nazi Germany’s secret codes by creating the “Turing bombe,” a forerunner of modern computers.

Some churches and conservative family groups warned the bill will drive more parents to take their children out of public schools.

“This sexual brainwashing bill would mandate that children as young as 6 years old be told falsehoods — that homosexuality is biological, when it isn’t, or healthy, when it’s not,” said Randy Thomasson, president of SaveCalifornia.com.

The Assembly passed the bill on a 49-25 vote.

—  John Wright

Judge rejects motion to vacate Prop 8 ruling

Judge Vaughn Walker

A federal judge today upheld a ruling declaring Proposition 8 unconstitutional, rejecting a motion to vacate the ruling on the grounds that the judge who issued it is gay.

Chief U.S. District Judge James Ware handed down his decision this afternoon after hearing arguments on the motion Monday. Ware denied the motion from supporters of California’s same-sex marriage ban, who argued that Judge Vaughn Walker should have recused himself because he’s in a long-term relationship with another man. Walker declared Prop 8 unconstitutional in August.

“The sole fact that a federal judge shares the same circumstances or personal characteristics with other members of the general public, and that the judge could be affected by the outcome of a proceeding in the same way that other members of the general public would be affected, is not a basis for either recusal or disqualification under Section 455(b)(4),” Ware wrote in his decision. “Further, under Section 455(a), it is not reasonable to presume that a judge is incapable of making an impartial decision about the constitutionality of a law, solely because, as a citizen, the judge could be affected by the proceedings. Accordingly, the Motion to Vacate Judgment on the sole ground of Judge Walker’s same-sex relationship is DENIED.”

Peter Renn, a staff attorney for Lambda Legal who attended Monday’s hearing, said: “The court decisively rejected an outrageous attack on the integrity of Judge Walker, not to mention judges in general. The motion was a sideshow designed to deflect attention from the fact that the proponents had every chance to prove that Prop 8 was constitutional, but could not do so. Prop 8 was declared unconstitutional because it is unconstitutional — not because the judge is gay.”

Read Ware’s full decision here.

—  John Wright

DOMA ruled unconstitutional by bankruptcy court

A federal bankruptcy court in California on Monday ruled that Section 3 of the Defense of Marriage Act is unconstitutional.

The U.S. Bankruptcy Court for the Central District of California in Los Angeles ruled that it is discriminatory to prevent a legally married same-sex couple from filing for joint bankruptcy.

The couple, Gene Balas and Carlos Morales, filed a joint chapter 13 petition. They were married in 2008 in California and remain legally married.

In his ruling, the judge wrote: “This case is about equality, regardless of gender or sexual orientation, for two people who filed for protection under Title 11 of the United States Code (Bankruptcy Code).”

It is “undisputed that the Debtors are a lawfully married California couple,” the judge wrote, adding that the couple came to the court to restructure and repay their debt following extended illnesses and long periods of unemployment.

The U.S. trustee for the case filed a motion to dismiss on the grounds that two men cannot file jointly for bankruptcy. The judge ruled the trustee did not ask for dismissal based on one of the 11 causes listed in bankruptcy law to dismiss, but simply because the couple are two men.

The judge said the trustee filed no relevant case law supporting his position and said the couple should not be singled out for discriminatory treatment. He cited the Obama administration’s position that DOMA is unconstitutional and ruled that, indeed it is.

—  David Taffet

ANNIVERSARIES: Louise Young and Vivienne Armstrong, George Amerson and Mike Grossman

ARMSTRONG-YOUNG  | Louise Young and Vivienne Armstrong celebrated their 40th anniversary Monday, April 18. The couple met on the campus of the University of Colorado at Boulder in 1971 through the Gay Liberation Front organization there. They had a civil union in Vermont in 2000 and were legally married in California in August 2008.

 

GROSSMAN-AMERSON  | George Amerson and Mike Grossman marked their 40th anniversary Wednesday, April 20, after celebrating the event with a gathering of family and friends the previous weekend. Grossman is a Minneapolis native who had lived in Dallas a year when he met Amerson, a native of west Texas who had already lived in Dallas several years when they met. The couple say they are most proud of their children, Laura and Devon Cloud and Barney and Stephanie Grossman, and their grandchildren, Miles and Rachel. The two work in residential real estate, Grossman for 50 years and Amerson for more than 35 years.

—  John Wright