BREAKING: Texas appeals court upholds gay divorce, rules against AG’s office in Austin case

Angelique Naylor

A state appeals court has upheld a divorce that was granted to a lesbian couple in Austin last year, saying Texas Attorney General Greg Abbott lacks standing to appeal the divorce because he intervened in the case too late.

“Because the State lacks standing to appeal, we dismiss this appeal for want of jurisdiction,” a three-judge panel of Texas’ 3rd District Court of Appeals wrote in its decision posted earlier today.

Travis County District Judge Scott Jenkins granted a divorce to lesbian couple Angelique Naylor and Sabina Daly last February. Naylor and Daly married in Massachusetts in 2004 before returning to Texas and adopting a child. Abbott’s office appealed Jenkins’ decision, arguing that judges in Texas cannot grant same-sex divorces because the state doesn’t recognize same-sex marriage.

Abbott’s office won an appeal last year of a same-sex divorce in Dallas, where the 5th District Court of Appeals ruled in his favor.

Jennifer Cochran, an attorney who represented Naylor, explains on her blog that the Austin appeals court’s decision doesn’t address the constitutional issues related to gay divorce:

The Appellate Court dismissed the appeal for “want of jurisdiction” finding that the State was not a party of record and thus lacked standing to appeal.

So what’s this mean? Well this particular divorce was granted and upheld by the appellate court because the AG intervened after the divorce was granted orally by Judge Jenkins and because neither party raised constitutional challenges to the Family Code or the Texas Constitution.  If either party had, the appellate court would have most likely found that the AG did have standing and would have addressed the constitutional arguments in addition to the procedural ones.  So, we will leave the constitutional challenge for another day (or case).

Abbott’s office could now drop its appeal, request that the entire 3rd District Court of Appeals hear the case, or appeal the three-judge panel’s ruling to the Texas Supreme Court.

According to the Texas Tribune, Lauren Bean, a spokeswoman for Abbott’s office, said the decision “undermines unambiguous Texas law.”

“The Texas Constitution and statutes are clear: only the union of a man and a woman can be treated as a marriage in Texas,” she said, adding, “The Office of the Attorney General will weigh all options to ensure that the will of Texas voters and their elected representatives is upheld.”

More to come …

—  John Wright

Prop 8 case sent to Calif. Supreme Court

LGBT advocates frustrated over delay

Lisa Keen  |  Keen News Service

A 9th Circuit U.S. Court of Appeals panel surprised many Proposition 8 observers Tuesday, Jan. 4 when it suddenly issued five documents relating to the case.

But there was no decision Tuesday in Perry v. Schwarzenegger, the landmark case testing whether voters in California violated the U.S. Constitution when they amended the state constitution to ban marriage licenses for same-sex couples.

The bottom line of the documents was that the three-judge panel that heard arguments in an appeal of the case punted a critical question regarding legal standing to the California Supreme Court.

The appellate panel said it would not rule on the constitutionality of Proposition 8 until it gets a ruling from the California Supreme Court as to whether Yes on 8 proponents of the initiative have an “authoritative” entitlement to represent the voters who passed the initiative in the appeal in federal court.

The announcement frustrated and disappointed many.

“It is frustrating that this will slow the case down, especially since there is nothing in California law that gives initiative proponents the power to force an appeal when the official representatives of the state have determined that doing so is not in the best interests of the state,” said Shannon Minter of the National Center for Lesbian Rights.

The development struck some as odd. It appears the federal court is asking a state court whether Yes on 8 has standing to appeal a lower federal court ruling that struck down Proposition 8.

“I don’t think it was necessary to ask the California Supreme Court to rule on that issue,” said Minter, “and I am disappointed the Ninth Circuit did so.” But Ted Olson, a lead attorney on the team challenging Proposition 8, said it’s not uncommon.

And it was not really a surprise to learn the panel is struggling with the question of standing. During oral argument on Dec. 6, all three judges seemed troubled by the idea that a state governor or attorney general could, in essence, acquire an ability to veto a measure passed by voters by simply refusing to defend a challenge to its constitutionality in court. The California constitution does not provide the governor or attorney general a right to veto voter-passed initiatives.

Both Judge Stephen Reinhardt, widely perceived to be the most liberal of the panel, and Judge Randy Smith, the most conservative, seemed concerned that the governor and attorney general’s refusal to appeal the district court decision “does not seem to be consistent” with the state’s initiative system. Judge Michael Hawkins expressed frustration during arguments that the panel might be prevented from rendering a decision about the constitutionality of Proposition 8 “so it’s clear, in California, who has the right to marry and who doesn’t.” The panel seemed prepared, on Dec. 6, to ask the California Supreme Court to weigh in on the issue — and it’s somewhat curious that they waited one month before actually doing so.

In its 21-page order to the California Supreme Court, the three-judge panel asked the state court to determine whether Yes on 8 proponents have “rights under California law … to defend the constitutionality of [Proposition 8] … when the state officers charged with the laws’ enforcement … refuse to provide such a defense.”

Olson, in a telephone conference call with reporters soon after the court released its order, said that, if the California Supreme Court determines that there is no authority under state law for Yes on 8 to have standing to represent voters in the appeal, the 9th Circuit would be bound to accept that determination. However, the ruling on standing could still be appealed to the U.S. Supreme Court, he said.

If the California Supreme Court determines Yes on 8 does not have standing and the 9th Circuit rules accordingly, then the decision of U.S. District Court Judge Vaughn Walker on Aug. 4 will become the law throughout California, making it possible for same-sex couples to obtain marriage licenses.

Judge Walker ruled that Proposition 8 violates the U.S. Constitutional guarantees to equal protection and due process. Although neither the attorney general nor the governor provided any defense for the initiative during the trial last January, Walker did allow Yes on 8 proponents to intervene in the trial as defenders of the measure. But the appeals panel indicated that standing in the district court does not necessarily mean Yes on 8 has standing to appeal.

If Yes on 8 does appeal a loss on the issue of standing to the U.S. Supreme Court, and the high court rules in its favor, it would then most likely send the case back to the 9th Circuit for a ruling on constitutionality.

Meanwhile, among its other documents Tuesday, the 9th Circuit panel issued a 16-page opinion that Imperial County, Calif., does not have standing to appeal the district court decision itself. The panel said it was denying the county’s claim for standing on different grounds than did Judge Walker. The panel held that, because the county simply administers the state’s marriage law, it does not have any “interest on its own” to defend. The county has 14 days in which to appeal the panel’s ruling on standing.

The panel’s formal question to the California Supreme Court is: “Whether under Article II, Section 8 of the California Constitution, or otherwise under California law, the official proponents of an initiative measure possess either a particularized interest in the initiative’s validity or the authority to assert the State’s interest in the initiative’s validity, which would enable them to defend the constitutionality of the initiative upon its adoption or appeal a judgment invalidating the initiative, when the public officials charged with that duty refuse to do so.

“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,” states the order, “then Proponents would also have standing to appeal on behalf of the State.

“This court is obligated to ensure that it has jurisdiction over this appeal before proceeding to the important constitutional questions it presents,” says the order, “and we must dismiss the appeal if we lack jurisdiction. The certified question therefore is dispositive of our very ability to hear this case.

“It is not sufficiently clear to us, however, whether California law does so,” said the panel. “In the absence of controlling authority from the highest court of California on these important questions of an initiative proponent’s rights and interests in the particular circumstances before us, we believe we are compelled to seek such an authoritative statement of California law.”

Today’s development will, of course, delay the 9th Circuit panel’s decision on the merits of the case — whether voters can withhold marriage licenses from gay couples while granting them to straight couples.

“Further delay in restoring the freedom to marry in California is a lamentable hardship on couples,” said Evan Wolfson, head of the national Freedom to Marry group. “But I am confident that we will regain the freedom to marry in California soon.”

NCLR’s Minter agreed.

“I am confident the California Supreme Court will hold that California law does not give initiative proponents any special power to override the decisions of the state’s elected representatives,” said Minter. “In the meantime, however, Proposition 8 remains on the books, and every day that goes by, LGBT people in California are denied the freedom to protect their families and express their love and commitment through marriage. This will delay,” he said, “but not deny, the day that Proposition 8 is gone for good.”

The full text of the order is below.

© 2011 Keen News Service. All rights reserved.

CA9Doc 292

—  John Wright

Oral arguments ‘promising’ in Prop 8 case

Judges grill attorneys from both sides on issue of standing, merits of federal case challenging California’s same-sex marriage ban

Lisa Keen |  Keen News Service

SAN FRANCISCO — Famed attorney Ted Olson told a 9th Circuit U.S. Court of Appeals panel on Monday, Dec. 6 that the reason proponents of Proposition 8 have put forth to justify their ban on same-sex marriage is “nonsense.”

That reason, said Olson, reading from a page in the brief filed by attorneys for the Yes on 8 coalition, was that same-sex marriage “will make children prematurely preoccupied with issues of sexuality.”

“If believed,” said Olson, “that would justify the banning of comic books, television, video games, and even conversations between children.”

And it isn’t exactly the reason Yes on 8 proffered during their successful 2008 campaign to amend the state constitution to ban same-sex marriage. Back then, the primary reason, noted Olson, was “protecting children” from the notion that marriage between same-sex couples was OK.

So, what should the court consider as the reason behind denying same-sex couples the right to marry, asked Judge Michael Hawkins.

“Should we look just at the record in the district court?” he asked, or should we “imagine whether there is any conceivable rational basis” to ban gays from marriage?

Olson urged the court not to use its own imagination but to look at the reasons proffered by the Yes on 8 proponents and determine whether they “make sense” and whether they are “motivated by fear” or a dislike of gay people.

“Protecting our children,” said Olson, “is not a rational basis. It’s based on the idea there’s something wrong with” gay people.

Both Olson and his legal counterpart, Charles Cooper, argued with greater passion and animation during Monday’s argument before the federal appeals court than they had in January and June before U.S. District Court Judge Vaughn Walker. It was Walker’s ruling in August — that California’s ban on same-sex marriage violates the U.S. Constitution — that brought them to the appeals court in San Francisco on Monday. Unlike at the district court trial, where the U.S. Supreme Court barred any television or web broadcast, the appeals proceedings were carried live on national television by CSPAN and several California stations. Demonstrators crowded outside the federal building in San Francisco under the watchful eye of federal protection service officers. And interested observers and journalists packed the courtroom and watched broadcasts all over the country.

The three judges on the appeallate panel vigorously challenged each side’s arguments on both matters before the court — Yes on 8 and Imperial County’s legal qualification (standing) to appeal, and the validity of Walker’s declaration that Proposition 8 violates the equal protection and due process clauses of the 14th Amendment to the U.S. Constitution.

Judge N. Randy Smith, an alum of the Mormon-owned Brigham Young University, leveled hard questions at Cooper over Yes on 8’s claim to have legal standing to press the appeal. Then he pitched equally hard questions to Olson’s comrade David Boies, about the “problem” created for the court by the fact that neither the governor nor attorney general appealed the district court decision themselves. Even though neither has the power to veto an initiative, said Smith, they both nullified the initiative by not appealing it.

Boies tried to make the point that Gov. Arnold Schwarzenegger and Attorney General Jerry Brown made their decisions not to appeal after Judge Walker declared the initiative to be unconstitutional.

Judge Stephen Reinhardt, widely perceived to be a staunch liberal, seemed to agree with Smith, saying the governor and attorney general’s refusal to appeal the district court decision “does not seem to be consistent” with the state’s initiative system. And should the court find that Yes on 8 and Imperial County both lack the legal qualifications to appeal, the judges said, the appeals court has no cause to rule on the merits of the dispute.

Boies argued that the concern about what the governor and attorney general did was a “different issue” than standing. And on the issue of standing, said Boies, Yes on 8 and Imperial County have no standing to bring the appeal, simply because they can’t meet the standard of demonstrating a real injury from the district court’s decision.

It was not an easy sell. Hawkins expressed frustration that the court might not be able to render a decision on the merits “so it’s clear, in California, who has the right to marry and who doesn’t.”

Yes on 8 attorney Charles Cooper had argued that, because the California Supreme Court had, in an earlier, related court proceeding given Yes on 8 the right to intervene in the Perry v. Schwarzenegger case to defend Proposition 8, it intended to convey standing, too. By the end of the first hour of the proceeding — which was devoted to standing — the panel seemed inclined to ask the California Supreme Court to certify whether it intended Yes on 8 to have standing.

The panel seemed equally uncomfortable with the effort by a deputy clerk of Imperial County, Isabella Vargas, to seek standing to appeal Walker’s decision. The judges, particularly Hawkins, pointedly and repeatedly asked why Imperial County’s deputy clerk was seeking the status, and no explanation was given as to why the county clerk did not.

Robert Tyler, an attorney with a religious advocacy legal firm representing Vargas and Imperial County pro bono, evaded the answer to that question both in and out of the courtroom. At a press conference following arguments, he claimed the answer was a matter of attorney-client privilege.

The three judges were equally tough in questions about the merits of Judge Walker’s decision. As Cooper attempted to read from his prepared statement, Judge Hawkins interrupted almost immediately to ask him whether voters have the right to re-institute segregation in public schools.

“No,” said Cooper.

“Why not?” asked Hawkins.

“Because it would be inconsistent with the U.S. Constitution,” said Cooper.

“As interpreted by the U.S. Supreme Court,” interjected Hawkins.

“Yes,” conceded Cooper.

But in 1870, the U.S. Supreme Court probably wouldn’t have interpreted the constitution to forbid segregation? asked Hawkins.

Cooper conceded that was probably true.

“Well, how is this different?” asked Hawkins.

Judge Smith challenged Cooper using the Loving v. Virginia ruling by the U.S. Supreme Court that said states couldn’t prohibit interracial marriage. He did so by noting that Cooper was arguing that the Supreme Court had already ruled on the right of states to proscribe same-sex marriage in Baker v. Nelson. The high court, in 1972, dismissed the appeal of a gay couple who had sought a marriage license in Minnesota. Dismissing an appeal has more significance than simply refusing to hear an appeal. But, in dismissing the Baker appeal, the high court explained it was doing so because there was no “substantial federal question” presented by the case. There is dispute within legal circles as to whether that dismissal means anything today. But Cooper, and others, have tried to make a case that the Baker action is precedent, and that it governs attempts by other states to ban same-sex marriages.

If Baker was precedent, said Smith, then why couldn’t states ban interracial marriage, too?

Cooper had to concede the right of states to decide who can marry is “not an absolute right” and that their right to do so “is limited by the restrictions of the U.S. Constitution.”

When Cooper tried to argue that society has a rational interest in the creation of children and in promoting responsible procreation to ensure that children are adequately cared for, Judge Reinhardt suggested that might be a “good argument for prohibiting divorce.”

Judge Smith jumped in to challenge Cooper on this point, too. He noted that California domestic partnership laws provide same-sex couples with all the same benefits and rights to marriage, including those involving child-rearing. What is the rational reason for denying same-sex couples the designation of the word marriage, he wondered.

Judge Hawkins challenged Cooper to explain how California’s same-sex marriage ban is different from Colorado’s Amendment 2, which said no law could prohibit discrimination based on sexual orientation. The Supreme Court struck down Amendment 2 in Romer v. Evans, saying the only reason for the law was animus against gay people and that laws may not be justified by mere animus.

Cooper argued that Amendment 2 had been a “sweeping” denial of protections to gay people, in banking, employment, housing, commercial transactions, and many other areas of life. Proposition 8, he said, is focused just on marriage. And, in marriage, said Cooper, society had an interest to protect unrelated to animus against gay people, and that interest is promoting responsible procreation.

Therese Stewart, the openly gay chief deputy city attorney for San Francisco, tackled that argument head-on, by noting that same-sex couples “do procreate — not in same way [as heterosexual couples], but they do procreate.”

Gay legal activists seemed pleased with how the arguments went Monday.

Evan Wolfson, head of the national Freedom to Marriage Project, said that, overall, he thinks “it looks promising, both on standing and on the merits.”

Shannon Minter, senior counsel for the National Center for Lesbian Rights, agreed, saying he was especially encouraged that “at least two of the judges seemed highly critical of Charles Cooper’s claim on behalf of the proponents that Prop 8 could be justified based on arguments relating to procreation.” And Ted Olson, he said, “was particularly eloquent and urged the Court to reach the broad question of whether same-sex couples have a fundamental right to marry.”

Jenny Pizer, head of Lambda Legal Defense’s Marriage Project, said she wouldn’t be surprised if the panel’s eventual ruling includes “multiple decisions” on how they reached the same outcome “with different reasonings.”

“And if they conclude Prop 8 is invalid while disagreeing about the details of why,” said Pizer, “that may be just fine.”

The panel is expected to render its decision on both the standing issue and the constitutionality of Proposition 8 within a few months. Boies speculated during a post-argument press conference that the earliest the panel would likely render a decision is early next year and the earliest the case might be heard by the Supreme Court — during its almost inevitable appeal — would be 2012.

© 2010 by Keen News Service. All rights reserved.

—  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

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: Appeals court grants stay of DADT ruling, making policy enforceable again

John Wright  |  Online Editor
wright@dallasvoice.com

“Don’t ask don’t tell” likely will soon go back into effect, after a federal appeals court granted a temporary stay Wednesday of a district judge’s previous order halting enforcement of the policy.

The U.S. Department of Justice requested an emergency stay of the order from District Judge Virginia Phillips, who ruled in September that the policy is unconstitutional, in a lawsuit brought by Log Cabin Republicans. Phillips issued an order halting enforcement of the policy last week, and denied the government’s request for an emergency stay on Tuesday. However, the DOJ then requested an emergency stay from the U.S. Court of Appeals for the Ninth Circuit, which will hear the government’s appeal of Phillips’ ruling.

Wednesday’s temporary stay, issued by a three-judge panel of the appeals court, means the ban on open service is legally enforceable again. The temporary stay will remain in effect until sometime after Oct. 25, when the Ninth Circuit court decides whether to leave it in place pending the appeal.

“This interim temporary stay means that ‘Don’t Ask, Don’t Tell’ is once again on the books, and is likely to be enforced by the Defense Department,” said Aubrey Sarvis, executive director of the Servicemembers Legal Defense Network. “Gay and lesbian service members deserve better treatment than they are getting with this ruling. We now must look to the Senate next month in the lame duck session to bring about the swift certainty needed here and to repeal this unjust law that serves no useful purpose.”

It’s unclear how Wednesday’s stay will affect gays and lesbians who may have enlisted during the eight days since Phillips’ injunction when the policy was unenforceable.

“The revival of the ‘Don’t Ask, Don’t Tell’ law is a sad day for all Americans who want the best and brightest service members defending our country,” said Joe Solmonese, president of the Human Rights Campaign. “Today’s decision only furthers our resolve to send this law to the dustbin of history and also draws a spotlight on the administration to make good on their pledge to end these discharges that damage our national security.”

Alex Nicholson, executive director of Servicemembers United, said he hopes the appeals court will opt not to extend the stay during the appeal, which will take at least several months.

“While we are obviously disappointed that the injunction was temporarily stayed, we hope that the Ninth Circuit will recognize the inherent contradiction in the government’s arguments for a longer stay in light of eight full days of non-enforcement with no ‘enormous consequences,” Nicholson said. “An objective look at the evidence before the court clearly indicates that ending ‘Don’t Ask, Don’t Tell’ would not harm military readiness, but would rather enhance it.”

GetEQUAL announced that it will be protesting Thursday when President Barack Obama visits Seattle.

“This temporary stay, sought by President Obama’s Department of Justice, bring the military’s discriminatory ‘Don’t Ask, Don’t Tell’ law back from the dead,” said Robin McGehee, co-founder and director of GetEQUAL. “It is a travesty that after numerous attempts, President Obama and Attorney General Eric Holder will go down in history as the Administration that breathed life back into ‘Don’t Ask, Don’t Tell.’ The lives and careers of openly gay and lesbian servicemembers are now back in the crosshairs of our government and a renewed commitment to discrimination falls squarely in the hands of this White House.”

—  John Wright

BREAKING: Government seeks emergency stay of ‘don’t ask don’t tell’ ruling from appeals court

The U.S. Department of Justice earlier today asked a federal appeals court for an emergency stay of a district judge’s order halting enforcement of “don’t ask don’t tell,” Politico reports.

DOJ attorneys have asked the U.S. Court of Appeals for the Ninth Circuit to rule on the request by tonight.

In other words, if you’re gay and you want to enlist in the military, we’d suggest you hurry up and do it.

Here’s the full text of the emergency stay request:

PPM143_101020_dadt_stay

—  John Wright

DOJ appeals injunction halting DADT

Advocates warn LGBT servicemembers not to come out until questions are settled

From Staff and Wire Reports

The U.S. Department of Justice on Thursday, Oct. 14 asked a federal district judge to allow the military to continue enforcing “don’t ask, don’t tell” pending the government’s appeal of her ruling declaring the policy unconstitutional.

The request came two days after U.S. District Court Judge Virginia Phillips issued an injunction Tuesday, Oct. 12 ordering the Department of Defense to halt enforcement of DADT worldwide.

The DOJ, which is defending the 17-year-old ban on open service, on Thursday asked Phillips to stay the injunction pending its appeal of her September ruling.

“As the President has stated previously, the Administration does not support the DADT statute as a matter of policy and strongly supports its repeal,” the justice department told Phillips. “However, the Department of Justice has long followed the practice of defending federal statutes as long as reasonable arguments can be made in support of their constitutionality, even if the Administration disagrees with a particular statute as a policy matter, as it does here.”

If Phillips denies the request for a stay of the injunction, the DOJ can request an emergency stay from the U.S. Court of Appeals for the Ninth Circuit, which will hear any appeal.

The DOJ has 60 days from the time of Phillips’ injunction to appeal her ruling.
Representatives from Log Cabin Republicans, which brought the lawsuit, and other groups advocating for DADT repeal warned LGBT servicemembers against coming out in the wake of Tuesday’s injunction.

Christian Berle, deputy executive director for Log Cabin Republicans issued a statement Thursday afternoon saying his organization had “expected that the Obama administration would continue to pull out all the stops to defend ‘don’t ask, don’t tell.’” But, Berle pledged, “Log Cabin Republicans will continue to advocate on behalf of the American servicemembers who everyday sacrifice in defense of our nation and our Constitution.  If this stay is granted, justice will be delayed, but it will not be denied.”

Berle said Log Cabin Republicans are urging Senate Majority Leader Harry Reid to “do what it takes” to repeal DADT when Congress reconvenes after the midterm elections in November.

“If Sen. Reid treats the minority party fairly, the votes will be there to end ‘don’t ask, don’t tell’ once and for all,” Berle said.

Although the House of Representatives voted this summer to repeal the policy, as an amendment to a Department of Defense spending bill, the measure died in the Senate last month when supporters could not get enough votes to end a Republican filibuster.

Republicans launched their filibuster in protest after Reid added an amendment to the bill dealing with immigration and refused to allow Republicans to add amendments from the Senate floor.

Even though Phillips’ injunction barring enforcement of DADT remains in force, at least for the time being, David Guy-Gainer of Forest Hills, a board member for Servicemembers Legal Defense Network, said his group is urging closeted servicemembers to act with caution.

“If you look at it in terms of gay marriage in California, you remember that sliver of time [between the Supreme Court ruling overturning the state’s ban on gay marriage] and the passage of Proposition 8 [which amended the Constitution], there were couples who were legally married in California. And even after Prop 8 passed, those marriages held up. They are still legal,” Guy-Gainer said.

“There is a chance there could be a window like that created in this case,” he continued. “But it’s too risky. If you have a gay servicemember who stands up while this injunction is in force and tells his commander, ‘Hey, I’m gay,’ and then the injunction is lifted, well the commander isn’t going to just forget that.

“Despite the injunction, we can’t confirm that they have actually stopped discharges, so it’s just too risky to actually come out,” Guy-Gainer said.

Rob Schlein, president of Log Cabin Republicans of Dallas, criticized the White House for appealing the injunction.

“I am very happy that the judge followed through on her decision and issued the injunction. But I think it is very sad that our ‘fierce advocate,’ President Obama, has filed an appeal, which is contradictory to his claims that he wants the law repealed,” Schlein said.

Rich Hisey, a former M.P. in the U.S. Army who is also a member of Log Cabin Dallas, said he feels “really good, very pleased” about Phillips’ ruling in the case and her injunction against DADT, despite the appeal.

“I think this is a big victory for Log Cabin Republicans, and a big victory for the gay community as a whole,” Hisey said. “It’s been a long, long road. But we’re finally getting close to the end.”

Still, Hisey said, he, too, warns gay and lesbian servicemembers to be “very, very cautious right now.”

“I served three years in the Army, in the military police, back in the 1980s. That was a very different time, and I was closeted the whole time I was in the military. Things are different now, but I think if I were in the military now, I would stay in the closet for a while longer at least. I think everything is still up in the air, and it is still too risky to come out,” Hisey said.

Hisey also echoed Schlein’s frustration with Democrats’ failure to repeal DADT, despite their pledges to do so.

“Obama has not shown any leadership, and he still continues to push the DOJ to appeal this ruling,” Hisey said.

“My real frustration is with the Democrats in the Senate. We had a golden opportunity last month to repeal DADT, but Harry Reid played politics with it and added the Dream Act to the bill, even though he knew it wouldn’t pass. That really bothers me.”

Senior White House officials have said the president wants to end DADT, but believes the change should come through Congress and not through the courts.

Shortly after the appeal was filed Thursday, President Obama sent out a notice on Twitter, reiterating his opposition to DADT and renewing his pledge to end the policy.

“Anybody who wants to serve in our armed forces and make sacrifices on our behalf should be able to,” the president Tweeted. “DADT will end & it will end on my watch.”

The bill passed by the House calls for repeal of DADT, but only after the completion of a Pentagon study that includes a survey on how servicemembers and their family members feel about repealing the policy. That study is due Dec. 1.

This article appeared in the Dallas Voice print edition October 15, 2010.

—  Kevin Thomas

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

BREAKING: Judge orders military to halt enforcement of ‘don’t ask don’t tell’

A federal judge in California has issued an injunction halting enforcement of “don’t ask don’t tell.”

Judge Virginia Phillips on Tuesday ordered the U.S. military “immediately to suspend and discontinue any investigation, or discharge, separation, or other proceeding, that may have been commenced” under DADT.

Phillips previously ruled that DADT violates servicemembers’ rights to due process and free speech. However, she delayed issuing an injunction in the lawsuit brought by the Log Cabin Republicans.

The Department of Justice now has 60 days to appeal the decision but has not said whether it will do so. In the meantime, the DOJ could also seek a stay of the decision from the U.S. Circuit Court of Appeals for the Ninth Circuit. DOJ has no obligation to appeal the ruling and could simply allow it to stand.

“This order from Judge Phillips is another historic and courageous step in the right direction, a step that Congress has been noticeably slow in taking,” said Alexander Nicholson, executive director of Servicemembers United and the sole named veteran plaintiff in the case along with the Log Cabin Republicans. “While this is certainly news to be celebrated, we would also advise caution in advance of a potential stay from the Ninth Circuit. If the appellate court wishes to put itself on the right side of history, however, it will allow this sound and long-over due decision to remain in effect.”

Christian Berle, acting executive director of Log Cabin Republicans, said in the wake of Phillips’ initial ruling, the injunction was the “only reasonable solution.”

“These soldiers, sailors, airmen and marines sacrifice so much in defense of our nation and our Constitution,” Berle said. “It is imperative that their constitutional freedoms be protected as well. This decision is also a victory for all who support a strong national defense. No longer will our military be compelled to discharge servicemembers with valuable skills and experience because of an archaic policy mandating irrational discrimination. The United States is stronger because of this injunction, and Log Cabin Republicans is proud to have brought the case that made it possible.”

Dan Woods, one of the attorneys representing Log Cabin, said he was “extremely pleased” with the injunction.

“The order represents a complete and total victory for Log Cabin Republicans and reaffirms the constitutional rights of gays and lesbians in the military who are fighting and dying for our country,” Woods said.

Other statements on Tuesday’s order:

Aaron Tax, legal director, Servicemembers Legal Defense Network:

“We applaud Judge Phillips for putting an immediate stop to all investigations and discharges under this unconstitutional law. As explained by the judge, this order applies across the military. This order bars the Department of Defense from enforcing or applying the ‘Don’t Ask, Don’t Tell’ law against any person under its command. We have clients under investigation and facing discharge right now. We’ll be monitoring each case over the coming days. This order will likely be appealed by the Justice Department and brought to the U.S. Court of Appeals for the 9th Circuit where her decision may well be reversed. The law still has a chance of being repealed in the lame duck session of Congress. Service members must proceed safely and should not come out at this time. Anyone in the armed forces with questions or concerns should call our hotline.”

—  John Wright