Is Wyoming the next gay marriage battleground?

State Rep. Cathy Connolly

In the state-by-state march toward marriage equality, four states have been on the radar for possible legalization of same-sex marriage this year. This week, a fifth state became a new possibility.

According to the Billings Gazette, Wyoming State Rep. Cathy Connolly, D-Laramie, will file two bills. One would legalize same-sex marriage, the other civil unions. Connolly is lesbian.

Wyoming does not have a constitutional amendment that bans same-sex marriage. Bills have been filed to change that, and Connolly’s bills are in response.

Like Iowa, where same-sex marriage became legal a few years ago, Wyoming does have a history of equality. When Wyoming was admitted to the union in 1890, it became the first to allow women to vote and was the first to elect a woman governor. (That was 1924 and Texas elected a woman — “Ma” Ferguson — that year as well).

In Wyoming’s 60-seat lower house, only 10 of those seats are held by Democrats. In the Senate, only four out of 30 are Democrats.

Four other states that may consider marriage equality this year are New York, Rhode Island, Maryland and Minnesota.

Of those four, Rhode Island and Maryland are the states where it is most likely to pass. Rhode Island’s new governor favors marriage equality and Democrats hold a strong majority in both houses. Their former governor opposed equality although the state already recognizes marriages performed elsewhere.

Maryland has been studying equality for more than a year and a bill is progressing.

New York recognizes marriages performed elsewhere and two courts have upheld that recognition. The state’s new governor, Andrew Cuomo, supports equality, as did their former governor, but the state Senate has a one-vote Republican majority that may block passage.

In his inaugural speech, Cuomo said, “We believe in justice for all, then let’s pass marriage equality this year once and for all.”

Minnesota’s new governor campaigned as an LGBT ally, countering his opponent’s staunch anti-gay bigotry. Support of the Republican is what led to an unorganized Target boycott. The new Democrat has said he supports marriage equality and would like to see a bill pass.

—  David Taffet

Court says Texas AG can’t block gay divorce

Angelique Naylor

Associated Press

AUSTIN — The Texas attorney general can’t block a divorce granted to two women who were legally married elsewhere, an appeals court ruled Friday, Jan. 7.

A judge in Austin granted a divorce last February to Angelique Naylor and Sabina Daly, who were married in Massachusetts in 2004 and then returned home to Texas.

A day after the divorce was granted, Texas Attorney General Gregg Abbott filed a motion to intervene in the case, arguing the judge didn’t have the jurisdiction to grant the divorce because Texas has a constitutional ban on same-sex marriage. The judge ruled that the attorney general’s motion wasn’t timely, a decision Abbott then appealed.

In Friday’s ruling, a three-judge panel of 3rd Texas Court of Appeals in Austin said the state was not a party of record in the divorce case and Abbott therefore did not have standing to appeal.

The ruling, however, does not settle the debate over whether same-sex couples should be allowed to divorce in Texas, where a different appeals court has ruled against a gay couple seeking a divorce in the state.

The 5th Texas Court of Appeals in Dallas ruled in August that gay couples legally married in other states can’t get a divorce in Texas. In that case, Abbott had appealed after a Dallas judge said she did have jurisdiction to grant a divorce — though had not yet granted one — and dismissed the state’s attempt to intervene.

The ruling by the Dallas appeals court’s three-judge panel also affirmed the state’s same-sex marriage ban was constitutional. Texas voters in 2005 passed, by a 3-to-1 margin, a constitutional amendment to ban same-sex marriage even though state law already prohibited it.

Austin attorney Jody Scheske, who handled the appeals in both divorce cases, acknowledged the divergent rulings far from settle the issue of gay couples seeking a divorce in Texas.

“It’s complicated and to some extent remains unsettled and that’s unfortunate,” he said. “If you have a legal marriage you should have the same equal right to divorce as all other married people have.”

But for his client in the Austin case, the Friday ruling means she will remain divorced, Scheske said.

“For the larger issue, what it means is the state of Texas can’t intervene in private lawsuits just because it doesn’t like one of the trial court’s rulings,” he said. “The state was not a party, so they couldn’t intervene after the fact.”

The attorney general can choose to ask the entire Austin appeals court to hear the case there or can appeal the Friday ruling to the Texas Supreme Court.

Abbott spokeswoman Lauren Bean said their office “will weigh all options to ensure that the will of Texas voters and their elected representatives is upheld.”

“The Texas Constitution and statutes are clear: only the union of a man and a woman can be treated as a marriage in Texas. The court’s decision undermines unambiguous Texas law,” Bean said.

Unlike the Dallas case, the Austin case did not examine whether the judge had jurisdiction to grant the divorce. Ken Upton, a staff attorney for Lambda Legal, a national legal organization that promotes equal rights for gay, lesbian, bisexual and transgender people, noted the Austin appeals court decision was in fact quite narrow.

“Basically, the only rule that comes out of it is that (Abbott) waited too long,” he said.

He said the predicament of gay couples seeking divorce in Texas highlights what happens when states adopt “such different views about marriage and relationships.”

“The more we have this patchwork of marriage laws, the more difficult it is for people who don’t have access to the same orderly dissolution,” he said.

—  John Wright

A viewer’s guide to the Proposition 8 arguments

3-judge panel from 9th Circuit appeals court takes up case challenging voter-approved amendment banning same-sex marriage in California; C-SPAN will televise proceedings

Lisa Keen  |  Keen News Service lisakeen@me.com

THE NEXT STEP | Kristin Perry, from left, and Sandra Stier, listen as attorney Theodore Olson speaks at a news conference at the Federal Building in San Francisco in July 2009. A three-judge panel from the 9th Circuit Court of Appeals will hear arguments in the case on Monday, Dec. 6. (Jeff Chiu/Associated Press)

A federal appeals panel in San Francisco will hear oral arguments Monday, Dec. 6, in the landmark challenge to Proposition 8 — California’s voter-passed constitutional amendment banning same-sex marriage.

Broadcast of the district court trial last January was disallowed due to objections by some witnesses who said they feared harassment. But only attorneys will appear before the court Monday, and the 9th Circuit has agreed to allow the proceedings to be broadcast on C-SPAN and in other venues around the country.

A three-judge panel will hear arguments regarding the appeal of a lower court decision that held Proposition 8 violates the federal Constitution’s guarantees to equal protection and due process of law.

The Aug. 4 decision from Judge Vaughn Walker was the first time a federal court had struck down a statewide same-sex marriage ban, and similar bans exist in the constitutions or statutes of 38 other states.

Another six states have interpreted existing law as excluding same-sex couples from marriage licensing. Only five states and the District of Columbia have marriage equality laws.

If the 9th Circuit U.S. Court of Appeals upholds the lower court decision, the ruling would make the bans in California and eight other western states unenforceable. But the decision of the 9th Circuit — whatever it is — will almost certainly be appealed to the U.S. Supreme Court, and a decision there could affect bans in all states.

But there are also numerous potential variations to this simple scenario.

The most prominent potential variation at the moment concerns whether the group that has been defending Proposition 8 in court has legal standing to bring its appeal to the 9th Circuit.

It is a dull question compared to the drama of the original three-week trial of witnesses who testified about how Proposition 8 had damaged their lives. But its resolution could have enormous consequences for the case and will consume one of two hours set aside for Monday’s appeal.

Here is some key information most court watchers will need to know and will want to take notice of Monday:

Case name: Perry v. Schwarzenegger is the shorthand name for the case. The full name is Perry v. Schwarzenegger and Hollingsworth et. al.

Time and Place: Monday, Dec. 6, 10 a.m. PDT (noon, CST) at the 9th Circuit U.S. Court of Appeals, in San Francisco.

Where to watch: Nationally, C-SPAN will be broadcasting the proceedings live. Court enthusiasts can also go to the federal courthouse in select cities around the country to watch a live feed — in Boston; Brooklyn, N.Y.; Portland, Ore.; Seattle, Wash.; Pasadena, Calif.; and two other courthouses in San Francisco.

The Parties: Perry is Kristin Perry, one of four plaintiffs who originally filed the lawsuit challenging Proposition 8. Perry seeks to marry her partner of 10 years, Sandra Stiers. They have four children. The other two plaintiffs — also a couple — are Paul Katami and Jeff Zarrillo, who have been together for nine years.

The city of San Francisco was also designated as a plaintiff-intervenor in the district court, meaning the city did not bring the lawsuit but established that it had a governmental interest in the outcome.

Schwarzenegger is, of course, Republican Gov. Arnold Schwarzenegger, who represents the California government in the case. Neither Schwarzenegger nor California Attorney General Jerry Brown (now governor-elect) was willing to defend Proposition 8 in the appeal.

So the real appellants in the case are the original “proponents” of the ban, identified as the Yes on 8 campaign (aka ProtectMarriage.com), and include State Sen. Dennis Hollingsworth and others. In addition, the board of supervisors and clerk of Imperial County are seeking the right to serve as appellants as well.

The schedule: The first hour of the two-hour argument will be focused on the issue of whether the Yes on 8 appellants and/or Imperial County have legal standing to appeal the lower court’s decision (see below). There will be a “brief” break, and then the second hour will be focused on the merits of the appeal (see below). The entire proceeding is likely to be concluded by around 12:15 p.m. Pacific Time.

The attorneys: At least six attorneys will be involved in Monday’s argument — three on merits and three on standing.

On merits, famed conservative attorney Ted Olson will argue for the four plaintiffs, and Therese Stewart, the openly gay chief deputy city attorney for San Francisco, will present arguments for the city, which would like to see the ban struck down. Conservative attorney Charles Cooper, who led the defense of Proposition 8 at the district court trial, is expected to argue the merits for proponents.

On standing, it has not yet been announced who will argue the standing issue for plaintiffs, the Yes on 8 Proponents, or Imperial County.

Legal standing issue: Not just anybody can initiate a lawsuit and appeal the decision, but courts err on the side of allowing a party to appeal.

Nevertheless, a party or parties seeking to appeal must still show they are at least vulnerable to an “actual” injury because of the decision below. That injury can include an economic one, but it has to be an injury more “concrete” than the fact that appellants disagree with the lower court decision.

Proponents will argue that the fact they were allowed standing in the U.S. District Court should mean they should naturally have standing on appeal.

The merits: Two provisions of the U.S. Constitution’s 14th Amendment are at issue, both encompassed in this language: “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

Concerning due process, a state cannot deny citizens a fundamental right, including the right to marry, unless it can show a compelling reason to do so. U.S. District Court Judge Vaughn Walker said proponents failed to establish “any historical purpose for excluding same-sex couples from marriage, as states have never required spouses to have an ability or willingness to procreate in order to marry.”

With equal protection, the government may not treat one group of citizens with less favor than others unless it has a reason to do so. It may not treat oppressed minorities with less favor unless it has a compelling reason to do so.

Judge Walker ruled that gays and lesbians are an oppressed minority and that proponents failed to establish evidence of even a simple, rational reason to treat them differently, much less a compelling one.

The Judges: The 9th Circuit on Monday, Nov. 29, announced the three judges that will make up next Monday’s panel — and it’s a dramatic line-up.

The senior-most judge — in age and experience on the federal appeals bench — is Stephen Reinhardt, 79, a Carter nominee who has ruled favorably on gay-related cases before.

The least senior is N. Randy Smith, 69, a native of Utah, an appointee of President George W. Bush, and a graduate of Brigham Young University Law School, an entity of the Mormon Church which played an enormous role in promoting Proposition 8.

In the middle is Judge Michael Hawkins, 65, a Clinton appointee, based in Phoenix, Ariz.

Prop 8 proponents on Wednesday, Dec. 1, filed papers asking Reinhardt to recuse himself because his wife, Ramona Ripston, is executive director of the Southern California chapter of the ACLU, which has been actively involved in trying to invalidate Prop 8.

But Reinhardt on Thursday morning, Dec. 2, issued a statement refusing to step down from the trial, saying there is no legal reason to question his impartiality.

Timetable after argument: There is no deadline by which the three-judge panel must issue its opinion, however, a decision is likely to be forthcoming within a few months. The losing party then will almost certainly appeal that decision to the full 9th Circuit U.S. Court of Appeals,which may or may not agree to hear an appeal.

The losing party at that point would then likely appeal to the U.S. Supreme Court. The earliest the Supreme Court would likely get such an appeal would be in the fall of 2011, and the earliest it would rule would be in the late spring of 2012.

If the proponents or Imperial County lose on the question of standing, the 9th Circuit could decide not to make a ruling on the merits. But proponents and/or Imperial County would almost certainly appeal the decision concerning standing to the Supreme Court.

Should the Supreme Court rule that either of those parties has standing, it would then send the question on the merits of the appeal back to the 9th Circuit for a decision.

That eventual decision on the merits from the 9th Circuit could then be appealed to the Supreme Court. Wild guess timetable for a decision from the Supreme Court on merits with this scenario? 2014.

© 2010 by Keen News Service. All rights reserved.

This article appeared in the Dallas Voice print edition December 3, 2010.

—  Michael Stephens

Ban on Sharia law in Okla. ruled unconstitutional

Judge Vicki Miles-LaGrange

A federal judge stopped short of declaring Oklahoma voters a bunch of dumbasses, but she did rule that their attempt to outlaw Sharia law is unconstitutional, according to the Daily Oklahoman.

U.S. District Judge Vicki Miles-LaGrange issued a 15-page ruling throwing out the state constitutional amendment. On Nov. 2, Oklahoma voters approved the amendment that would have prohibited state courts from considering or using Sharia law despite the fact that state courts had never used – nor had plans to use — Sharia law. The constitutional amendment passed with more than 70 percent of the vote.

Sharia is Islamic law based on the Quran and the teachings of Muhammed. It includes the Ten Commandments — so the amendment effectively made the Ten Commandments illegal in Oklahoma.

Miles-LaGrange wrote in her opinion, “This order addresses issues that go to the very foundation of our country, our Constitution, and particularly, the Bill of Rights.”

Supporters of the law said it was a defense against such practices as marital rape. However, state laws already make such practices  illegal.

Muneer Awad, the head of the Council on American-Islamic Relations in Oklahoma, filed suit against the amendment claiming it violated his freedom of religion.

The judge ruled that he had standing in the case and that he would have suffered injury to his First Amendment rights. Awad lives in Oklahoma, is a Muslim and “the amendment conveys an official government message of disapproval and hostility toward his religious beliefs, that sends a clear message he is an outsider, not a full member of the political community, thereby chilling his access to the government and forcing him to curtail his political and religious activities.”

Republican State Rep. Rex Duncan was the author of the amendment. He said it wasn’t intended to attack Muslims but rather was a “pre-emptive strike.”

Aren’t pre-emptive strikes usually attacks?

And wasn’t the only terrorist attack that has taken place in Oklahoma — the Oklahoma City bombing of the Murrah Federal Building — carried out by a couple of Christian guys?

—  David Taffet

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

What does Chris Heinbaugh think about Mayor Leppert’s decision to endorse Rick Perry?

Dallas Mayor Tom Leppert on Wednesday endorsed Republican Gov. Rick Perry for re-election.

The Dallas Morning News described it as a “rare display of public partisanship for Leppert,” and said it marked the first time he’s endorsed a candidate for major office. The DMN also noted that Leppert may run for U.S. Senate in 2012, when Perry presumably might return the favor.

Leppert has been generally supportive of the LGBT community and has an openly gay chief of staff, Chris Heinbaugh. However, Leppert is also a member of First Baptist Church of Dallas, which is led by anti-gay Senior Pastor Robert Jeffress.

Perry, meanwhile, is virulently anti-gay and spearheaded Texas’ 2005 constitutional amendment banning same-sex marriage. Leppert says his decision to endorse Perry was based on their shared views about economic development and job creation.

Instant Tea asked Heinbaugh on Thursday what he thinks about the endorsement.

“I’m not going to comment on it,” Heinbaugh said. “It’s his business what he wants to do.”

—  John Wright

Appeals court says no to gay divorce

A state appeals court in Dallas has ruled that two gay men who were married in Massachusetts cannot obtain a divorce in Texas.

The ruling came from the 5th District Court of Appeals on Tuesday in the case, In the Matter of the Marriage of J.B. and H.B.

J.B. and H.B. married in Massachusetts in 2006 and filed for a divorce in Texas in January 2009 after moving here. Massachusetts, which has allowed same-sex marriage since 2004, has a residency requirement for divorce.

In October of last year, District Judge Tena Callahan ruled that J.B. and H.B. could obtain a divorce in Texas, saying that the state’s constitutional amendment banning same-sex marriage is unconstitutional.

Callahan’s decision was immediately appealed by Republican Attorney General Greg Abbott, who argued that same-sex couples cannot divorce in Texas because the state doesn’t recognize same-sex marriage. An all-Republican, three-judge panel of the appeals court heard oral arguments in the case in April.

“We hold that Texas district courts do not have the subject-matter jurisdiction to hear a same-sex divorce case,” the panel said in Tuesday’s ruling. “Texas’s laws compelling this result do not violate the Equal Protection Clause of the Fourteenth Amendment.”

Pete Schulte, a gay Dallas attorney who serves as co-counsel for J.B. in the case, issued a statement Tuesday afternoon.

“We respectfully disagree with the justices’ opinion,” Schulte said. “However, we respect the process and are evaluating our options moving forward.”

Jerry Strickland, a spokesman for the AG’s office, said in a statement: “Today’s Court of Appeals decision overruled the District Court’s improper ruling, confirmed the constitutionality of Texas’ traditional definition of marriage and correctly found that Texas courts lack the legal authority to grant divorces to same-sex couples. Because the Constitution and laws of the State of Texas define marriage as the union of one man and one woman, the Court correctly ruled that Texas courts do not have authority to grant a same-sex divorce. Further, the Court rejected the parties constitutional challenge and instead ruled that Texas’ definition of marriage is entirely consistent with the U.S. Constitution.”

Many expect case the case will be appealed to the Texas Supreme Court.

To view the full ruling, click on this link: Gay.Divorce

—  John Wright

Wisconsin high court upholds marriage ban

The Wisconsin Supreme Court this a.m. upheld the state’s same-sex marriage ban in a unanimous decision. A lawsuit alleged that the referendum on the state’s 2006 constitutional amendment was improper because it dealt with both marriage and civil unions:

The court rejected a lawsuit that claimed the amendment violated a rule that limits referendum questions to a single subject. The lawsuit, filed by a voter opposed to the amendment, argued that gay marriage and civil unions were two different subjects.

Justice Michael Gableman says both sentences “carry out the same general purpose of preserving the legal status of marriage in Wisconsin as between only one man and one woman.”

The plaintiffs in the Wisconsin case argued that some voters may oppose same-sex marriage but support civil unions. Therefore, they said, the referendum violated their free speech rights.

Texas, of course, has a similarly worded amendment. The 2005 Texas amendment bans both same-sex marriage and “any legal status identical or similar to marriage.”

—  John Wright