Houston’s State Rep. Garnet Coleman applauds Prop. 8 decision

State Rep. Garnet Coleman

Rep. Garnet Coleman, D-Houston, took to his blog today to applaud yesterday’s decision by the United States Ninth Circuit Court of Appeals declaring Proposition 8  unconstitutional (Prop. 8, passed in 2008, prohibited marriage equality in California):

“Yesterday’s 9th Circuit decision, just like the decision in Lawrence v. Texas, is a stepping stone on the path to marriage equality for all. As Judge Stephen R. Reinhardt of the 9th Circuit Court of Appeals wrote in the opinion, ‘Proposition 8 serves no purpose, and has no effect, other than to lessen the status and human dignity of gay men and lesbians in California, and to officially reclassify their relationships and families as inferior to those of opposite-sex couples.’ The same holds true for the marriage equality ban in Texas. That is why I continue to fight for marriage equality and continue to file the repeal of the ban of same sex marriage. Denying gay couples the right to marry is unconstitutional and a blatant denial of human rights. “

Coleman has a long history of filing pro-LGBT legislation in the Texas House. Last year he introduced historic legislation that, had it passed, would have called for a state-wide vote to repeal the section of Texas’ constitution prohibiting same-sex marriage, so he’s no stranger to the battle for marriage equality.

Coleman is seeking re-election to his District 147 seat. He will face long-time local LGBT activist Ray Hill in the Democratic Primary. No republican candidate has filed for the seat.

Read Coleman’s full statement on his blog.

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“Defining Marriage: A Debate!” at U of H tomorrow

Dr. Jennifer Roback Morse

Dr. Jennifer Roback Morse

One day we will get to the point where an University inviting guests to debate marriage equality will be greeted with the same scorn that an on-campus debate on women’s suffrage or whether or not African-Americans are 3/5 of a person would engender, but that day is not today. Just in time for the expected U.S. Court of Appeals for the Ninth Circuit ruling on Prop. 8  tomorrow, Feb. 7, the Federalist Society and Outlaw at the University of Houston present “Defining Marriage: A Debate!” at noon in the Bates Law Building room 109.

Dr. Jennifer Roback Morse, founder of the Ruth Institute, a project of the National Organization for Marriage, will be on hand to defend the continued prohibition against marriage equality. Mitchell Katine, who served as local counsel in Lawrence v. Texas (the Supreme Court case declaring Texas’ law against “homosexual conduct” unconstitutional) will defend marriage as a civil right, constitutionally guaranteed by equal protection under the law.

As a bonus the first 70 attendees to arrive will receive a free Chick-Fil-A sandwich and waffle fries, because we like our civil rights debated with a side of irony.

After the jump get a sneak peak at the kind of keen logical arguments to be expected from Dr. Morse:

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Obama DOJ files DOMA defense brief in First Circuit cases

This is no surprise, as the Obama administration announced last year it would defend the Defense of Marriage Act in regards to Gill v. Office of Personnel Management and Massachusetts v. United States, which addresses section of the DOMA regarding federal benefits to same-sex married couples. The brief is here. (The Wonk Room):

The Obama administration announced its intention to defend DOMA in October of 2010 and today filed a brief arguing that “DOMA is rationally related to legitimate governmental interests.” The government maintained that Congress enacted the law during an era of upheaval to maintain “uniformity on the federal level” and allow states the flexibility to expand the definition of marriage as they see fit:
By passing DOMA, Congress sought to preserve the status quo understanding of marriage in federal law as limited to opposite-sex couples while preserving the authority of individual states to engage in a period of evaluation of and experience with a new definition of marriage that is open to same-sex couples. Congress could rationally conclude that maintaining the status quo at the federal level during a period of change would allow states that wish to make changes in the legal definition of marriage to retain their inherent prerogative to do so, while permitting others to maintain their existing view, both by declining to authorize same-sex marriages in the first instance under their own laws and by declining to recognize such marriages that are approved under the laws of other states.

At MetroWeekly, Chris Geidner has more.
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Obama Renominates Gay Man as Federal Circuit Judge

Presdient Obama today re-nominated more than 40 judicial candidates, sending them to the Senate where they will face scrutiny from the Judiciary Committee.

Sam Stein reports: Dumont

"They may face an additional round of committee hearings, a Senate aide said, but that will be determined by Judiciary Chairman Patrick Leahy (D-Vt.) and the ranking Republican, likely to be, according to a Senate aide, Sen. Chuck Grassley (R-Iowa). Hearings or no, the committee will have to vote on each candidate again before sending them back to the Senate floor for final consideration. And with more Republicans in the chamber than there were for the past two years, the nominees' chances may be slimmer."

Among the nominations is Edward Carroll DuMont of the District of Columbia, nominated to be United States Circuit Judge for the Federal Circuit. DuMont would be the first openly gay federal appellate court judge in the nation. DuMont was originally nominated last April.


Towleroad News #gay

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NCLR Legal Analysis Of The Ninth Circuit Prop 8 Ruling

BLEND EXCLUSIVE: Trial analysis by the National Center For Lesbian Rights (NCLR) Attorney Shannon Minter.


By Shannon Minter, Esq.

National Center for Lesbian Rights Legal Director

Today brings a new development in Perry v. Schwarzenegger, the federal constitutional challenge to California’s Proposition 8, which amended the California Constitution to strip same-sex couples of the freedom to marry.  Thumbnail Link: NCLR's Legal Director Shannon MinterPerry is currently on appeal before the Ninth Circuit Court of Appeals, the federal appeals court that covers California. In a ruling issued this morning, the Ninth Circuit denied Imperial County’s attempt to intervene in the case. The Ninth Circuit also asked the California Supreme Court to clarify whether, under California law, the group that placed Prop 8 on the ballot has a legal right to appeal District Court Judge Vaughn Walker’s decision that Prop 8 is unconstitutional.

To understand what today’s ruling means, it is helpful to look back on the history of the Perry case. In May 2009, two same-sex couples filed suit in the U.S. District Court for the Northern District of California. Judge Walker permitted Prop 8′s official supporters to intervene in the case as defendants, and also permitted the City and County of San Francisco to intervene as a plaintiff to represent its unique governmental interest in marriage equality. On the eve of trial, Imperial County also filed a motion asking to intervene in the case as a defendant.

After a three-week trial in January 2010, Judge Walker ruled in August 2010 that Prop 8 violates the United States Constitution’s guarantees of due process and equal protection of the laws. Judge Walker also ruled that Imperial County did not have the right to intervene as a defendant.

California’s Governor and Attorney General decided not to appeal that ruling because they agreed that Prop 8 was unconstitutional. The supporters of Prop 8 and Imperial County both filed appeals with the Ninth Circuit.

At oral argument on December 6, 2010, the Ninth Circuit panel asked all sides questions about whether the official supporters of Prop 8 have the legal right to appeal Judge Walker’s decision. The parties also addressed whether Imperial County should have been allowed to intervene in the case as a defendant.

Today, the Ninth Circuit panel upheld Judge Walker’s decision not to allow Imperial County or its Deputy Clerk to intervene in the case. In order to intervene, Imperial County would have needed to show that it had a significant interest at stake. The Ninth Circuit explained in today’s opinion that Imperial County did not have any interests that would be sufficiently affected by the outcome of this lawsuit.

In addition, the Ninth Circuit made clear in today’s ruling that if the supporters of Prop 8 do not have the legal right to appeal Judge Walker’s decision that Prop 8 is unconstitutional, the appeal is over. In order to answer that question, the Ninth Circuit has asked the California Supreme Court to clarify whether California law gives Prop 8′s supporters the right to pursue an appeal when the state’s official representatives, after carefully evaluating the interests of the entire state, have made a considered decision not to appeal.

Ultimately, the Ninth Circuit must decide whether the Prop 8 supporters have a right to appeal under federal law – that is, whether they have “standing” to appeal.  The California Supreme Court may hold that California law does not give initiative sponsors the right to override the litigation decisions of the state’s official representatives.  If so, then the Ninth Circuit likely will hold that the Prop 8 supporters do not have standing.  That would mean that the Ninth Circuit would dismiss the appeal, Judge Walker’s ruling would stand, and same-sex couples would once again be able to marry in California.  

Alternatively, if the California Supreme Court were to hold that California law gives initiative sponsors the extraordinary power to bring an appeal over the objections of the Attorney General and the Governor, the Ninth Circuit would still have to decide whether Prop 8′s supporters meet all of the other criteria to have standing under federal law.  If it ultimately holds that the Prop 8 supporters have standing, then the Ninth Circuit could reach the merits of Judge Walker’s ruling that Prop 8 is unconstitutional.      

The next step after today’s ruling is for the California Supreme Court to decide whether it will accept the Ninth Circuit’s request. If it does so, it will then get briefs from both sides, and might hear oral argument as well before ruling. There is no set timeline for the California Supreme Court to rule.  In previous cases, it has taken the California Supreme Court up to two years to answer a question sent to it by the Ninth Circuit. Given the importance of this case and the real harm that inequality causes to LGBT people every day, however, we are hopeful that the Court will act quickly to restore fairness and equality for same-sex couples in California.

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Related:

* Visit the Blend for exclusive legal analysis of Federal Prop 8 trial by NCLR

* Shannon Minter: Perry v. Schwarzenegger Proceedings, Day 1

* Shannon Minter: Perry v. Schwarzenegger Proceedings, Day 2

* Shannon Minter: Perry v. Schwarzenegger Proceedings, Day 3

* Shannon Minter: Perry v. Schwarzenegger Proceedings, Day 4

* Shannon Minter: Perry v. Schwarzenegger Proceedings, Day 5

* Shannon Minter: Perry v. Schwarzenegger Proceedings, Day 6

* Shannon Minter: Perry v. Schwarzenegger Proceedings, Day 7

* Shannon Minter: Perry v. Schwarzenegger Proceedings, Day 8

* Shannon Minter: Perry v. Schwarzenegger Proceedings, Day 9

* Shannon Minter: Perry v. Schwarzenegger Proceedings, Day 10

* Shannon Minter: Perry v. Schwarzenegger Proceedings, Day 11

* Shannon Minter: Perry v. Schwarzenegger Proceedings, Day 12

* Key commentary from the PHB Shannon Minter live blog on the fed Prop 8 trial

* NCLR Analysis: Closing Arguments For Perry v. Schwarzenegger

* NCLR Analysis: Perry v. Schwarzenegger Ruling

* NCLR Analysis: Ninth Circuit Court Of Appeals Hearing On Perry v. Schwarzenegger
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Breaking Prop 8 news: federal case punted by 9th circuit back to California Supreme Court

There’s a lot of legalese to read through, but the short answer is that the federal court (9th circuit) is handing the case back to the California Supreme Court to determine whether the Protect Marriage crowd has standing to appeal. The brief:

               

Calitics has a quick analysis up:

A further reading of the document issued minutes ago by the 9th Circuit indicates that the court is ready to rule that Prop 8 proponents DO have standing to appeal. In turn, that would enable the 9th Circuit to decide whether Prop 8 is a violation of the 14th Amendment (and obviously it is), a decision that would have major ramifications across California and the country. Here’s what the 9th Circuit said:
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, then Proponents would also have standing to appeal on behalf of the State….

We are aware that in California, “All political power is inherent in the people,” Cal. Const. art. II, ? 1, and that to that end, Article II, section 8(a) of the California Constitution provides, “The initiative is the power of the electors to propose statutes and amendments to the Constitution and to adopt or reject them.” We are also aware that the Supreme Court of California has described the initiative power as “one of the most precious rights of our democratic process,” and indeed, that “the sovereign people’s initiative power” is considered to be a “fundamental right.”…

The power of the citizen initiative has, since its inception, enjoyed a highly protected status in California. For example, the Legislature may not amend or repeal an initiative statute unless the People have approved of its doing so….

Similarly, under California law, the proponents of an initiative may possess a particularized interest in defending the constitutionality of their initiative upon its enactment; the Constitution’s purpose in reserving the initiative power to the People would appear to be ill-served by allowing elected officials to nullify either proponents’ efforts to “propose statutes and amendments to the Constitution” or the People’s right “to adopt or reject” such propositions. Cal. Const. art. II, ? 8(a). Rather than rely on our own understanding of this balance of power under the California Constitution, however, we certify the question so that the Court may provide an authoritative answer as to the rights, interests, and authority under California law of the official proponents of an initiative measure to defend its validity upon its enactment in the case of a challenge to its constitutionality, where the state officials charged with that duty refuse to execute it.

So what does that all mean? Let me boil it down. Basically, California’s constitution and various CA Supreme Court decisions in the last few decades have indicated that the initiative power is a right inherent to the people of the state, and does not stem from the Legislature. It sets up the people as a kind of fourth branch of government. And therefore, if the Governor and the Attorney General refuse to defend a proposition in court, that could essentially nullify the fundamental rights of the voters. Since ballot initiatives stem from the people, presumably the people – in the form of the initiative proponents – DO have standing to defend Prop 8 in court and to appeal it to the 9th Circuit in order to preserve the people’s initiative power.

Click over for more.
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BREAKING: Prop 8 decision from Ninth Circuit coming in 15 minutes (written at 1:45PM Eastern)

At least that’s the message that just dropped into our Inbox. Stay tuned.

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**UPDATE: Not sure if the opinion will be posted on the 9th Circuit’s Perry miscrosite. But here it is, just in case.

We’ll of course embed the full opinion here at the first available opp.

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*HERE IT IS: So wait, the case is going back to the CA Supreme Court? Read along and help me figure it out:



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Good As You

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More Discharged Service Member File Suit in Ninth Circuit

More Discharged Service Member File Suit in Ninth Circuit

Today, three highly decorated service members discharged under “Don’t Ask, Don’t Tell” (DADT) filed suit in federal district court seeking re-instatement and challenging the constitutionality of DADT.  In their complaint, which was filed before a Ninth Circuit district court in California, the three plaintiffs assert that the military bears the burden of proving that the sexual orientation of each discharged service member had a negative impact on the military.  The complaint states that if the military cannot fulfill this burden, the three plaintiffs should be re-instated in their respective branches and provided credit toward retirement for the period they were unconstitutionally discharged.

A similar argument was asserted before a different Ninth Circuit district court earlier this year in Witt v. Air Force.  The district court in Witt determine that the military failed to prove that Major Margaret Witt’s sexual orientation had a negative impact on the military, and provided for her re-instatement in the Air Force.  Also, occurring only months ago, a different Ninth Circuit district court declared DADT unconstitutional in Log Cabin Republicans v. United States.  The litigation in each of these decisions is ongoing, but illustrates the rise of litigation regarding DADT – particularly in the Ninth Circuit.

Earlier this year, the President expressed his support for repealing DADT and the House passed repeal legislation.  However, only last week, the Senate failed to take action on the Defense Authorization bill, which contained language that would lead to a repeal DADT.  Until Congress moves forward to legislatively repeal DADT, discharged service members are likely to continue to bring suits challenging the constitutionality of DADT and DADT discharges.

HRC applauds plaintiffs Mike Almy, Anthony Loverde, and Jason Knight  for their courage in challenging the DADT law, as well as Servicemembers Legal Defense Network and Morrison & Foerster LLP for filing this suit on behalf of the plaintiffs.


Human Rights Campaign | HRC Back Story

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More Discharged Service Member File Suit in Ninth Circuit

More Discharged Service Member File Suit in Ninth Circuit

Today, three highly decorated service members discharged under “Don’t Ask, Don’t Tell” (DADT) filed suit in federal district court seeking re-instatement and challenging the constitutionality of DADT.  In their complaint, which was filed before a Ninth Circuit district court in California, the three plaintiffs assert that the military bears the burden of proving that the sexual orientation of each discharged service member had a negative impact on the military.  The complaint states that if the military cannot fulfill this burden, the three plaintiffs should be re-instated in their respective branches and provided credit toward retirement for the period they were unconstitutionally discharged.

A similar argument was asserted before a different Ninth Circuit district court earlier this year in Witt v. Air Force.  The district court in Witt determine that the military failed to prove that Major Margaret Witt’s sexual orientation had a negative impact on the military, and provided for her re-instatement in the Air Force.  Also, occurring only months ago, a different Ninth Circuit district court declared DADT unconstitutional in Log Cabin Republicans v. United States.  The litigation in each of these decisions is ongoing, but illustrates the rise of litigation regarding DADT – particularly in the Ninth Circuit.

Earlier this year, the President expressed his support for repealing DADT and the House passed repeal legislation.  However, only last week, the Senate failed to take action on the Defense Authorization bill, which contained language that would lead to a repeal DADT.  Until Congress moves forward to legislatively repeal DADT, discharged service members are likely to continue to bring suits challenging the constitutionality of DADT and DADT discharges.

HRC applauds plaintiffs Mike Almy, Anthony Loverde, and Jason Knight  for their courage in challenging the DADT law, as well as Servicemembers Legal Defense Network and Morrison & Foerster LLP for filing this suit on behalf of the plaintiffs.


Human Rights Campaign | HRC Back Story

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NCLR Analysis: Ninth Circuit Court Of Appeals Hearing On Perry v. Schwarzenegger

BLEND EXCLUSIVE: Trial analysis by the National Center For Lesbian Rights (NCLR) Attorney Shannon Minter.


By Shannon Minter, Esq.

National Center for Lesbian Rights Legal Director

Today was the long-awaited oral argument at the Ninth Circuit Court of Appeals in Perry v. Schwarzenegger, the federal court challenge to Proposition 8. Thumbnail Link: NCLR's Legal Director Shannon MinterThe Ninth Circuit is the federal appeals court that covers California. Today’s argument was heard by a panel of three judges, who will decide whether to uphold District Court Judge Vaughn Walker’s August ruling that Prop 8 is unconstitutional.

The argument ran for almost two and a half hours, covering two basic questions:

• Do the proponents of Prop 8-and Imperial County, which is seeking to intervene in the case-have the right to appeal Judge Walker’s ruling, even though they do not represent the State of California? The legal term for this question is whether the proponents have “standing” to appeal.

• Second, is Prop 8 unconstitutional?

It is never possible to predict how any judge will rule based on the questions that are asked at argument, but overall, today’s argument seemed to go well for the plaintiffs. The panel asked difficult questions throughout and were particularly tough, on both sides, on the standing issue.  In the end, they seemed skeptical that Imperial County has standing to be in the case. They also seemed to recognize that recent U.S. Supreme Court cases raise serious questions about whether the proponents of an initiative like Prop 8 have standing.  

Some of the panel’s questions hinted that they might ask the California Supreme Court to rule on whether California law gives the proponents of a ballot measure the power to force an appeal over the objections of the official representatives of the state (the governor and attorney general). Arguing on behalf of the plaintiffs, attorney David Boies forcefully argued that even if California law would allow the proponents to defend the initiative, the proponents still could not meet the federal requirements for bringing this appeal because they cannot show that they are directly affected in any way by whether same-sex couples can marry.  

In the second hour, on the constitutionality of Prop 8, the panel’s questions focused on two general areas: the unique circumstances under which Prop 8 was passed in California — where same-sex couples had the right to marry before Prop 8 stripped that right away; and the principle established by the U.S. Supreme Court in their 1996 decision, Romer v. Evans, that a state cannot deliberately discriminate against gay people just to send a message that they are inferior.  

At least two judges seemed critical of the argument that Prop 8 can be justified based on arguments relating to procreation-which was the central defense offered by the proponents’ attorney Charles Cooper.  Repeatedly, the judges pressed Cooper on how procreation could possibly justify Prop 8 when California law gives same-sex couples exactly the same parentage rights as heterosexual couples, and has affirmatively embraced same-sex couples as equally good parents.  

Arguing on behalf of the plaintiffs, former U.S. Solicitor General Ted Olson urged the court to reach the broad question of whether same-sex couples have a fundamental right to marry under the U.S. Constitution.  In an argument that complemented Olson’s, Therese Stewart, Chief Deputy City Attorney  for San Francisco, did a brilliant job of laying out why Prop 8 is uniquely irrational because it took away an existing right, because California continues to give same-sex couples all of the substantive rights and benefits of marriage, and because the stated purpose of Prop 8 in the ballot materials was to counter the idea that being gay is “okay.”

Stewart also made a crucial point about what it means for a court to determine that the only justification for a law is “animus,” or bias, against a group of people, which would be unconstitutional. Contrary to how the proponents have framed this question in the media and in court, Stewart rightly argued that from a constitutional perspective, finding that a law was based on “animus” does not have to mean that the voters intentionally sought to harm gay people.  Rather, unconstitutional “animus” can include situations where the voters failed to think about what is really at stake for the targeted group, or failed to guard against a natural tendency toward stereotyping of unfamiliar or historically disfavored groups.

Together, Boies, Olson and Stewart were a great team and did a phenomenal job of presenting the most powerful arguments for upholding Judge Walker’s decision. There is no specific timeline for the Ninth Circuit panel to issue a ruling, but they have expedited the case up to this point, and we may see a decision with a few months.  In the meantime, unfortunately, same-sex couples in California will have to continue to live under the state’s separate-but-equal system that designates our families as second-class.

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Related:

* Visit the Blend for exclusive legal analysis of Federal Prop 8 trial by NCLR

* Shannon Minter: Perry v. Schwarzenegger Proceedings, Day 1

* Shannon Minter: Perry v. Schwarzenegger Proceedings, Day 2

* Shannon Minter: Perry v. Schwarzenegger Proceedings, Day 3

* Shannon Minter: Perry v. Schwarzenegger Proceedings, Day 4

* Shannon Minter: Perry v. Schwarzenegger Proceedings, Day 5

* Shannon Minter: Perry v. Schwarzenegger Proceedings, Day 6

* Shannon Minter: Perry v. Schwarzenegger Proceedings, Day 7

* Shannon Minter: Perry v. Schwarzenegger Proceedings, Day 8

* Shannon Minter: Perry v. Schwarzenegger Proceedings, Day 9

* Shannon Minter: Perry v. Schwarzenegger Proceedings, Day 10

* Shannon Minter: Perry v. Schwarzenegger Proceedings, Day 11

* Shannon Minter: Perry v. Schwarzenegger Proceedings, Day 12

* Key commentary from the PHB Shannon Minter live blog on the fed Prop 8 trial

* NCLR Analysis: Closing Arguments For Perry v. Schwarzenegger

* NCLR Analysis: Perry v. Schwarzenegger Ruling
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