Court won’t release videos from Prop 8 trial

LISA LEFF | Associated Press

LOS ANGELES — A federal appeals court refused Thursday to unseal video recordings of a landmark trial on the constitutionality of California’s same-sex marriage ban but said it needed more time to decide if a lower court judge properly struck down the voter-approved ban.

Siding with the ban’s supporters, the 9th U.S. Circuit Court of Appeals in San Francisco ruled the public doesn’t have the right to see the footage that former Chief U.S. District Judge Vaughn Walker had produced with the caveat it would be used only by him to help him reach a verdict.

Chief Judge Walker “promised the litigants that the conditions under which the recording was maintained would not change — that there was no possibility that the recording would be broadcast to the public in the future,” a three-judge 9th Circuit panel said in a unanimous opinion.

The 2010 trial over which Walker presided lasted 13 days and was the first in a federal court to examine if prohibiting gay couples from marrying violates their constitutional rights.

It was open to the public and received widespread media coverage, so the recordings would not have revealed any new evidence or testimony.

Walker, who has since retired and revealed he is in a long-term relationship with another man, originally wanted to broadcast the trial in other federal courthouses and on YouTube.

The U.S. Supreme Court forbade him from moving forward with that plan after the ban’s sponsors argued that distributing trial footage could subject their witnesses to harassment.

At the time, the 9th Circuit did not allow the federal courts within its jurisdiction to televise trials. The appeals court since has adopted rules that would permit trials to be broadcast under limited conditions.

“The 9th Circuit correctly ruled that when a trial judge makes a solemn promise, as Judge Walker did by assuring the parties that the trial video would not be publicly released, the judiciary must not be allowed to renege on its pledge,” said Austin Nimocks, a lawyer for the coalition of religious conservative groups that sponsored Proposition 8,

“To rule otherwise would severely undermine the public’s confidence in the federal courts by breaching the bond of trust between the people and their justice system,” he said.

The 9th Circuit has said it wanted to resolve the public release of the trial videos before it addresses the more substantive issue of whether Walker correctly struck down Proposition 8 on federal constitutional grounds.

The appeals court panel heard arguments about that a year ago, but does not face a deadline for making a decision.

A coalition of media organizations, including The Associated Press, and lawyers for the two couples who successfully sued to overturn Proposition 8 in Walker’s court have petitioned to have the Proposition 8 trial recordings made public on First Amendment grounds. The group maintained the ban’s backers have not proven their witnesses would be harmed if people got to see what they said under oath.

Walker’s successor as the chief U.S. district judge in Northern California, James Ware, agreed in September and planned to unseal the videos. In its Thursday ruling, the three-judge 9th Circuit panel said Ware had erred and ordered the recordings kept under seal.

“The integrity of our judicial system depends in no small part on the ability of litigants and members of the public to rely on a judge’s word. The record compels the finding that the trial judge’s representations to the parties were solemn commitments,” the appeals court said.

The panel also refused to return to Walker a copy of the recordings that Ware gave his colleague upon his retirement last year. Walker had used snippets of footage in public talks about the value of broadcasting court proceedings, but gave it back while the skirmish over the videos played out.

Gay rights advocates said they wanted to use the recordings to try to puncture political arguments used by opponents of same-sex marriage, but that Thursday’s decision would not be an insurmountable obstacle to that goal.

Screenwriter Dustin Lance Black, who serves on the board of the group funding the effort to overturn Proposition 8 in court, has written a play called 8 based on the trial transcript and interviews from the 2010 court fight that will premiere in Los Angeles next month with a cast that includes George Clooney, Jamie Lee Curtis and Martin Sheen.

“The fact that (the marriage ban’s backers) have gone this distance to keep the tapes from the American public, what it has done and increasingly will do, is inspire efforts that we will help lead to make sure the public knows what happened in the courtroom,” said Chad Griffin, president of the American Foundation for Equal Rights.

—  John Wright

BREAKING: Court allows military to continue enforcing ‘don’t ask don’t tell’ pending appeal

The U.S. military can continue enforcing “don’t ask don’t tell” pending the government’s appeal of a district judge’s decision declaring the policy unconstitutional.

With one justice dissenting, a three-judge panel of the U.S. Court of Appeals for the Ninth Circuit on Monday issued a stay of the district judge’s injunction barring the military from enforcing the policy.

The appeals court had already granted a temporary stay of the injunction, but Monday’s decision extends the stay for the duration of the appeal, which will take at least several months.

Chris Geidner at Metro Weekly reports:

“In addition to the fact that this case raises ‘serious legal questions,’” the court wrote, “there are three reasons that persuade us to grant a stay pending appeal.”

The reasons included that “Acts of Congress are presumptively constitutional,” that “‘judicial deference . . . is at its apogee’ when Congress legislates under its authority to raise and support armies” and that “the district court’s analysis and conclusions are arguably at odds with the decisions of at least four other Circuit Courts of Appeal.”

Dan Woods, an attorney for the plaintiffs in Log Cabin Republicans v. United States, issued the following statement:

“The court’s ruling is a disappointment not only to us, but also to all homosexual servicemembers who bravely put themselves in harm’s way so that we can all enjoy the constitutional rights and freedoms that they themselves are being denied. The decision only slows the day when military service will be available to all Americans, regardless of sexual orientation, who want nothing more than to serve their country honorably and patriotically. We will continue to fight on for the constitutional rights of these Americans and look forward to a favorable decision on the merits of the appeal. Meanwhile, we will discuss the court’s order with our client to determine whether we will ask for a review of the order by the U.S. Supreme Court.”

R. Clarke Cooper, executive director of Log Cabin, said in a statement, “Log Cabin Republicans is disappointed that ‘Don’t Ask, Don’t Tell’ will continue to burden our armed forces, undermine national security and limit the freedom of our men and women in uniform. Despite this temporary setback, Log Cabin remains confident that we will ultimately prevail on behalf of servicemembers’ constitutional rights. In the meantime, we urge President Obama to use his statutory stop-loss power to halt discharges under this discriminatory and wasteful policy. The president claims to want to see ‘Don’t Ask, Don’t Tell’ ended. It is time that he stop talking and start working to make a real difference for gay and lesbian Americans by pushing for repeal when Congress returns.”

—  John Wright

BREAKING: Government to request stay of injunction halting enfocement of DADT

The U.S. Department of Justice was expected to ask a federal judge on Thursday afternoon to allow the military to continue enforcing “don’t ask don’t tell” pending the government’s appeal of a September ruling declaring the policy unconstitutional.

U.S. District Court Judge Virginia Phillips issued an injunction Tuesday, Oct. 12 ordering the Department of Defense to halt enforcement of DADT worldwide. In September, Phillips ruled that DADT violates servicemembers’ constitutional rights to free speech and due process.

The DOJ plans to appeal Phillips’ ruling to the U.S. Court of Appeals for the Ninth Circuit, and on Thursday government lawyers were expected to request a stay of the injunction pending the appeal, according to The Advocate. The appeal must be filed within 60 days.

If Phillips doesn’t grant their request for a stay, DOJ attorneys likely will ask for an emergency stay from the appeals court.

—  John Wright

AG Brown, couples urge speedy return to gay marriages

PAUL ELIAS and LISA LEFF  |  Associated Press

SAN FRANCISCO — The attorneys who successfully sued to strike down California’s same-sex marriage ban have joined state Attorney General Jerry Brown in urging a federal appeals court to quickly allow gay marriages to resume in the state.

Theodore Olson and David Boies, the high-profile lawyers representing two couples, told the appeals court that same-sex couples are being hurt every day Proposition 8 is enforced and should not be denied their civil rights while the ban’s sponsors pursue an appeal of this month’s decision overturning the 2008 measure that was approved in a referendum.

“Indeed, the only harm at issue here is that suffered by Plaintiffs and other gay and lesbian Californians each day that Proposition 8′s discriminatory and irrational deprivation of their constitutional rights remains in force,” the lawyers argued in a filing late Friday, Aug. 13.

Brown, who is the Democratic nominee for governor, said in a separate filing that there was no reason for the 9th Circuit to grant the emergency stay request because state and local agencies would suffer no harm by being required to sanction same-sex marriages. County clerks across the state already are gearing up to do so next week, he said.

The swiftly drafted legal papers came in response to efforts by same-sex marriage opponents to get the 9th U.S. Court of Appeals to block a lower court judge’s ruling striking down Proposition 8 as unconstitutional from taking effect this week. If the 9th Circuit refuses to intervene, it would clear the way for same-sex couples to marry starting after the close of business Wednesday, Aug. 18.

Protect Marriage, the coalition of religious and conservative groups that sponsored Proposition 8, has appealed U.S. District Judge Vaughn Walker’s Aug. 4 ruling that found the voter-approved law unconstitutional. After Walker said on Thursday, Aug. 12 that he planned to finalize his ruling on Wednesday at 5 p.m., the group’s lawyers asked the 9th Circuit to prevent any gay marriages while the appeal is pending.

They argued the appeals court should grant an emergency stay “to avoid the confusion and irreparable injury that would flow from the creation of a class of purported same-sex marriages.”

Depending on how the 9th Circuit rules, same-sex couples could get married in California as early as next week or they would have to wait while the appeal works its way through the court and potentially the U.S. Supreme Court as well.

Walker, however, has expressed doubts over whether Protect Marriage has the right to challenge his ruling if neither the attorney general nor the governor elect to do so. Both officials refused to defend Proposition 8 in Walker’s court and have since said they see no reason why gay couples should not be able to get married now.

Although he allowed the group to intervene in the trial, the judge said the appellate court would have to make its own determination that same-sex marriage opponents would be injured if gay couples could wed, a claim Walker explicitly dismissed in his decision invalidating Proposition 8.

The ban’s backers addressed the potential for such a roadblock in their emergency stay request, saying California’s strong citizen initiative law permits ballot measure proponents to defend their interests if state officials will not.

“Proponents may directly assert the state’s interest in defending the constitutionality of its laws, an interest that is indisputably sufficient to confer appellate standing,” they said.

Theodore Boutrous, a lawyer with the legal team representing same-sex couples, said that keeping Protect Marriage from moving forward with an appeal was not necessarily the top priority of the plaintiffs.

“We believe that Chief Judge Walker’s ruling last week on the merits provides a powerful record on appeal, and we want the appellate courts to address the merits of Proposition 8,” Boutrous said. “The standing issue that Chief Judge Walker identified provides another potential weapon in our arsenal that will be part of the appellate arguments.”

California voters passed Proposition 8 as a state constitutional amendment in November 2008, five months after the California Supreme Court legalized same-sex unions and an estimated 18,000 same-sex couples already had married.

Five states — Massachusetts, Connecticut, Vermont, New Hampshire and Iowa — and the District of Columbia have legalized same-sex marriage. New York and Maryland recognize those marriages even though same-sex couples can’t wed within their borders. However, the federal government doesn’t recognize same-sex marriage, nor do the vast majority of states.

—  John Wright

Log Cabin asks federal judge to halt DADT

Sides make closing arguments after 2-week trial

JULIE WATSON  |  Associated Press Writer

RIVERSIDE, California — Lawyers for a Republican gay rights organization asked a federal judge Friday, July 23 to issue an injunction halting the military’s ban on openly gay service members.

Government lawyers countered by warning U.S. District Judge Virginia A. Phillips not to overstep her bounds while ruling on the lawsuit by the Log Cabin Republicans.

The exchange came as both sides made closing arguments in the case after a two-week trial.

It was unclear when Phillips would make a ruling on the policy that forbids openly gay personnel in the military. Legal experts say she may hold off to see if Congress is going to repeal the policy.

Attorney Dan Woods, who represents the 19,000-member Republican group, argued the policy violates the constitutional rights of gay military members to free speech, due process and open association.

“Log Cabin Republicans have brought this case to trial to call out the government on the wrong it’s doing on current and future homosexuals who wish to serve their country. We ask you to do them right,” Woods told Phillips.

The case is unique in that it is not based on an individual’s complaint but rather is a sweeping attack on the policy. It is the biggest legal test of the law in recent years.

The trial could not come at a worse time for President Barack Obama, who has criticized the military’s “don’t ask, don’t tell” policy for gays since taking office last year but has failed to get Congress to repeal it.

U.S. Department of Justice attorney Paul G. Freeborne said during his closing argument that Woods was asking the judge to go beyond her powers.

“We do not believe the court has the authority to issue a nationwide injunction,” he said.

The U.S. House of Representatives voted May 27 to repeal the policy, and the Senate is expected to take up the issue this summer. In deciding to hear the challenge, Phillips said the “possibility that action by the legislative and executive branches will moot this case is sufficiently remote.”

During the trial, plaintiffs presented seven expert witnesses and six military officers who have been discharged under the policy. Lawyers also submitted remarks by Obama stating “don’t ask, don’t tell” weakens national security.

Woods asked Phillips to impose a permanent injunction that would prevent the policy from being applied not only within the U.S. but anywhere in the world.

“Even if ‘don’t ask, don’t tell’ once did further an important government interest, it no longer does so,” Woods told the judge.

Government attorneys have said Congress should decide the fate of the policy — not a federal judge. They presented only the policy’s legislative history in their defense.

“Don’t ask, don’t tell” prohibits the military from asking about the sexual orientation of service members but requires discharge of those who acknowledge being gay or are discovered to be engaging in homosexual activity, even in the privacy of their own homes off base.

The Log Cabin Republicans, which includes former and current members of the military, said more than 13,500 service members have been fired under the law since 1994.

Testimony from former service members ranged from a decorated Air Force officer who was let go after his peers snooped through his personal e-mail in Iraq, to a sailor whose supervisor concluded he was gay after he refused to visit prostitutes.

Woods argued the policy harms military readiness and unit cohesion by getting rid of talented people. He pointed out the military has relaxed its standards and now allows convicted felons to make up for a shortage of personnel while the country is at war.

“In other words, our military will give a convicted felon a gun but will not give a gay guy a typewriter,” he said.

Freeborne told the court Obama’s statements criticizing the policy underscored that the decision should be made in the political arena.

“What you’ve essentially heard is a policy debate, a debate that should occur in Congress, not before a court,” he told the judge.

Phillips told Freeborne his argument overlooks the fact that the court “is directed to look at the effect of the statute.”

—  John Wright