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

‘A’ gay

Former Air Force captain Reichen Lehmkuhl has choice words about the Obama Administration and DADT, and the editing on his Logo series ‘The A List: New York’

ARNOLD WAYNE JONES  | Life+Style Editor jones@dallasvoice.com

Reichen Lehmkuhl
THAT’S CAPTAIN QUEER TO YOU! Former Air Force captain Reichen Lehmkuhl is an avid skier, and spokesman for the inaugural Matthew Shepard Gay Ski Week in Crested Butte, Colo., next March.

SHOOT THE BUTTE
Dish at the ilume,
4123 Cedar Springs Road.
Nov. 5, 6–8 p.m. Free.
MatthewShepardGaySkiWeek.com.
Reichen will also host a
meet-and-greet at Woody’s,
4001 Cedar Springs Road,
Nov. 5 at 10 p.m.

…………………………..

If all you know about Reichen Lehmkuhl is what you see in reality shows — he won Season 4 of The Amazing Race, and is currently one of the “gay housewives” on Logo’s The A List: New York — then you’re missing a lot of what drives him.

Formerly an airman in the U.S. Air Force, Reichen (nobody uses his last name) is an outspoken advocate for gay rights, especially the repeal of “don’t ask, don’t tell.” And on this election week, he has some choice words for the Obama Administration.

“What Obama has done is disappoint all of his voters and really squandered away all of our affection,” Reichen says without hesitation, reflecting his displeasure that the president — after claiming a desire to repeal DADT, nevertheless appealed a California court’s ruling that the law was unconstitutional. “He made a choice he didn’t have to make — one of process over basic values. And he flat-out lied about what his values are. He said he thought all gays and lesbians should be allowed to serve, and when the opportunity was presented to him without any effort at all, he did not support it.”

Reichen knows that, especially within the gay community, his harsh words about the country’s top Democrat might not be popular. But he has too much invested in this issue to remain silent.

“I’m getting a lot of hate mail,” he admits. “I think [some] people are being apologists and are blinded because they are afraid of looking like they don’t support [Obama]. But for those of us on the front lines — and I am — it has just been awful. And I just won’t be an apologist for the president.  I won’t do it. You can’t apologize for people who swore to do what they say they will and don’t.”

He was especially confused when, immediately after the Pentagon announced it would accept openly gay military applicants, the Justice Department filed its appeal in the lawsuit, even though the deadline to appeal (if at all!) was more than a month away. Reichen says the decision was basely political before the midterm elections.

“The day the president appealed the decision, I was asked to go on MSNBC the next day, but I was so baffled I didn’t know what to say and I didn’t want to say something wrong, so I turned down the request.”

All this is a far cry from why Reichen will be in town this week: Promoting Shoot the Butte, a gay ski week starting next year in Crested Butte, Colo., for which Reichen is a spokesperson and attendee (he’s a huge snowbunny, and in fact a certified ski instructor). But the ski event is actually in conjunction with the Matthew Shepard Foundation, for which he is a strong supporter.

And even talk of Judy Shepard steers him back to politics. As a former servicemember, Reichen firmly believes that people have lost sight of the easiest way to advance gay rights: Just let the discharges stop.

“If you stop the discharges and let people come out and say, ‘I am a professional and you can’t assume I am not because I am gay’ … once that happened for 30, 60 days, it would be impossible to reverse the decision,” he says. “Just [this week], the administration ordered that DADT is back in effect so the discharges are continuing.”

He sighs. You can tell it’s something he internalizes and takes very personally.

“I’m really worried about what the president did to the support of so many gay people. He really just slapped us all in the face. He is political and doesn’t believe in equality for LGBT people. If this had been a race issue, would he have put politics before values? No, he wouldn’t. It shows how low he thinks of us as a community.”

You might not expect such political passion from someone best known for playing himself on TV, especially in light of the persona he projects on The A List. But even there, Reichen has his criticisms. When I say he comes off as a jerk on the show, he immediately says, “I hope you put that in your article.”

“I’ve tried to explain that even to the producers,” he says. “What you’re seeing is what they wanna show. They say I’m not gonna come off as a jerk as the later episodes air [but we’ll see]. You see me hit on a guy in a club, but what you don’t see is this guy is a friend of mine for 13 years. And the editing with Austin makes it look like we had some big, long relationship — we spent one day together [in Palm Springs]! I kept in touch with him by text, but that’s it. He says I have a small cock and am a bad cocksucker. The guy’s never seen my cock and I’ve never been near between his legs!”

The show also makes it look like his relationship with boyfriend Rodiney is doomed. He’s contractually forbidden from saying where they stand, although he does reveal, “I saw him this morning. And we love each other very much — I can say that much.” (Not so for Austin, whom he says he ignores now.)

What he does say is not wrong about the editing on the show is what we learned this past week: Reichen looks hot in a dress.

“This is a big secret, but I love to do drag!” he says. “I totally get why drag queens do what they do. I have so much fun, though I look better when I do my own makeup. I have complete anonymity [when I go out in drag] and people are scared of me.”

Scared of him? Sounds like that could be an advantage against an enemy in battle. And maybe one more reason Reichen can list to bring down “don’t ask, don’t tell.”

This article appeared in the Dallas Voice print edition November 5, 2010.

—  Michael Stephens

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