Texas Republican seeking to intervene in marriage cases

Lamar Smith claims a ‘protectable interest’ in defending DOMA in Massachusetts lawsuits

Lisa Keen  |  Keen News Service lisakeen@mac.com

Claiming that the Obama Department of Justice is not doing enough to defend the federal Defense of Marriage Act, U.S. Rep. Lamar Smith, the Republican who represents Texas’ 21st district, has asked a federal court for permission to serve as an intervenor-defendant in two cases expected to come before the First Circuit U.S. Court of Appeals.

The Alliance Defense Fund announced Tuesday, Oct. 5,  that it had filed motions on behalf of Smith in the U.S. District Court for Boston, where Judge Joseph Tauro had ruled — in two cases — that one part of the federal Defense of Marriage Act is unconstitutional.

The Department of Justice still has until Oct. 12 and Health and Human Services has until Oct. 18 to give the court notice of whether the federal government intends to appeal those decisions.

In its Oct. 5 motions to intervene, the ADF claims the Department of Justice is mounting “no defense at all” for DOMA. The lawsuits in question challenge only DOMA Section 3, the section that limits the interpretation of “marriage” for any federal purpose to heterosexual couples.

“We should be strengthening and protecting marriage, not subjecting it to a hostile takeover through the courts,” said Dale Schowengerdt, legal counsel for the Alliance Defense Fund, in a press release. “If the Obama administration won’t defend marriage, we are ready and willing to do so.”

ADF claims the DOJ has failed to raise certain crucial arguments in defense of DOMA. For instance, it argues that DOJ should have noted that the U.S. Supreme Court’s “decision” in the 1972 Baker v. Nelson “was binding precedent that DOMA is constitutional.”

“Under the new administration, which strongly supports DOMA’s repeal, the DOJ traded these winning rationales for anemic arguments never recognized by any court in a challenge to DOMA or a similar state marriage definition,” states the ADF’s motion to intervene.

Actually, the Supreme Court did not issue a “decision” in Baker; it 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 the 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.

And Mary Bonauto, civil rights director for Gay & Lesbian Advocates & Defenders that brought one of the DOMA lawsuits, said the lawsuits here are not — like Baker — about marriage.

Bonauto also said she wasn’t surprised to learn of ADF’s motion to intervene.

“The ADF tries to intervene in everything,” said Bonauto. “We’re just surprised it took this long.”

Bonauto said her organization would oppose Smith’s motion to intervene “on multiple grounds.”

The motions to intervene will be decided by Judge Tauro sometime during the next few weeks or so. Bonauto said she doesn’t imagine the motions will be granted if the federal government decides to appeal the two cases.
The ADF motion claims that Rep. Smith has a “protectable interest” in the outcome of these lawsuits because, as ranking minority member of the House Judiciary Committee, he has a duty to see that federal laws “are fully defended and that adverse decisions are appealed.”

The motion says Smith asked Attorney General Eric Holder, by letter, on Aug. 9, whether DOJ intends to appeal the DOMA cases. DOJ had not yet made a decision, notes ADF.

“[I]t is difficult to understand to DOJ’s indecision,” says ADF’s brief.

Attorneys for the HHS have until Tuesday, Oct. 12, to file notice that they intend to appeal the decision in the state’s case, Massachusetts v. HHS. DOJ attorneys have until Oct. 18 to file notice of appeal in GLAD’s case, Gill v. Office of Personnel Management. GLAD’s Bonauto said it is common for the appealing party to give the court notice of its appeal in the last couple of days remaining to do so.

Thus, the timing of ADF’s motion could have the political benefit of appearing to prod DOJ and HHS to file notice. But Arthur Leonard, a long-time legal scholar on LGBT cases, says it’s also not unusual for Smith to file the intervenor motion.

“There have been occasions in the past where members of Congress have sought to intervene in order to present what they think would be stronger arguments than the Justice Department is likely to present, especially when the administration that is defending the statute is different from the administration that signed it into law,” said Leonard.

“But,” he added, “to the extent this is about getting particular arguments before the court of appeals, I can’t imagine that an appeal of the DOMA case won’t attract plenty of amicus briefs that would make all the arguments that Rep. Smith would want to make.”

© 2010 Keen News Service

This article appeared in the Dallas Voice print edition October 08, 2010.

—  Kevin Thomas

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

Calif. lawmakers ask Obama, Congress to repeal DOMA

Associated Press

SACRAMENTO, Calif. — California lawmakers are asking President Barack Obama and Congress to repeal the federal Defense of Marriage Act, saying it discriminates against same-sex married couples.

The state Senate voted 22-12 Monday, Aug. 23 for a resolution urging that the 1996 law be overturned. It defines marriage as being between a man and a woman and allows states to refuse to recognize same-sex marriages performed in other states.

The Assembly approved AJR19 last August.

Critics of the Defense of Marriage Act say it deprives gay couples of important federal rights and benefits.

California voted in 2008 to ban gay marriage. On Aug. 4, a federal judge overturned the ban, sending the case to the 9th U.S. Circuit Court of Appeals.

—  John Wright

DOMA ruling suspended pending appeal

Associated Press

BOSTON — A ruling by a judge who found a federal law defining marriage as a union between a man and a woman unconstitutional will be suspended for 60 days while the U.S. Department of Justice decides whether it will appeal the decision.

U.S. District Judge Joseph Tauro ruled in July that the federal Defense of Marriage Act is unconstitutional.

An amended judgment in the case was filed in court Wednesday. The Justice Department now has 60 days to decide if it will appeal the decision to the 1st U.S. Circuit Court of Appeals in Boston.

Gay & Lesbian Advocates & Defenders, the Boston-based group that filed the legal challenge, said it did not oppose the government’s request for a stay pending any appeal.

—  John Wright

What now with Prop 8?

Appeals court has stayed Walker’s ruling, but the case has been fasttracked as appeals over standing, merits work through the system

DAVID TAFFET  |  Staff Writer  taffet@dallasvoice.com

Chris Stoll
Chris Stoll

The three-judge panel of the 9th Circuit Court of Appeals in California that stayed the lower court’s decision this week ordered the Proposition 8 supporters to defend their standing in the case as it moves up on appeal.

Attorneys following the case closely all called the stay disappointing but were encouraged by the court questioning the standing of the defendants and the fast track timetable.

Chris Stoll is senior staff attorney for National Center for Lesbian Rights, a San Francisco-based organization that filed a brief in the Prop 8 case. He said that although it was disappointed that same-sex couples could not start getting married immediately, he was encouraged that the court fast-tracked the hearing to December and asked both sides to address standing.

Jennifer Pizer, National Marriage Project director for Lambda Legal, said she, too, was not surprised by the stay.

“It’s common for judges to maintain a status quo,” Pizer said.

She said that the stay does not indicate the merits of the case.

In fact, it is quite the opposite, she said, as indicated by the court directing the defendants to justify their standing in the case.

Ken Upton, senior staff attorney for Lambda Legal’s South Central Regional office in Dallas, said that the stay “probably isn’t going to matter much” in the long run because the court put the case “on a really short docket.”

Upton said he liked the schedule.

The court will hear the case after the election, but before a new governor takes office in California.

A different governor could decide to defend the case, Upton noted.

Federal District Judge Vaughn Walker ruled last week that there was no basis to continue a stay of his Aug. 4 ruling declaring Prop 8 unconstitutional. But he declined to lift his stay early, instead saying that it would expire Aug. 15 at 5 p.m., as he had originally ordered.
That gave the 9th Circuit court time to consider issuing a its own stay.

Gov. Arnold Schwarzenegger and Attorney General Jerry Brown had agreed to abide by the lower court’s ruling and said the case should not be appealed.

Since the state was the defendant in the case, the standing of the interveners, the Yes on 8 group that had campaigned for the amendment’s passage and that actually defended the case in court, is now in question.

Stoll explained that in a normal schedule for the 9th Circuit, final briefs might have been filed in December with oral arguments heard in February or later.

With extensions, the case might not have come before the appellate court until well into the spring.

While many cases are decided within weeks, the court is on no deadline. In a more complicated case like this, the decision could take months, Stoll said.

Two cases involving standing will be heard as well as the appeal of the actual ruling.

Officials with Imperial County in southeastern California have filed to defend Proposition 8 on behalf of the state.

And the Yes on 8 group, also known as the interveners, who defended the lower court case are appealing the judge’s decision. But their standing is also being questioned.

Stoll said that traditionally conservatives in the higher courts take a narrower view of standing than liberals.

Jenny Pizer
Jenny Pizer

“In general, they don’t want to be giving opinions that would be advisory and don’t have an impact on real people,” he said. “If the state is willing to abide by the trial court’s opinion, should the courts hear the case?”

When the court rules, presumably it will address standing first. If they find that the interveners and Imperial County officials do not have standing, Stoll said he didn’t expect any further discussion of the case by the court.

If they rule that either of the interveners have standing, then they will rule on the constitutional question.

To show that they have standing to appeal, the interveners “need to show they’ve been harmed to make a federal case out of it,” Pizer said.

“When a law is challenged as being unconstitutional, they can’t just stand up and say, ‘But we really, really want it.’ That works on Fox TV, but not in court.”

However, if the appeals court rules the interveners do not have standing, they can appeal to the U.S. Supreme Court. If that court finds that they do have standing, the case would return to the Circuit Court for a ruling on the legal issues.

If the appellate court finds that the interveners do have standing, then that court will rule on the merits of the case, deciding whether Judge Walker’s interpretation of law was correct and if Proposition 8 is illegal under California’s constitution.

When the three-judge panel that will hear the case makes that decision, either side can petition for the case to be heard “en banc,” which means by the full court. But in the 9th Circuit court, it means a panel of 11 judges chosen randomly from among the 29 on the court.

The ruling by the 11-member panel could then be appealed to the U.S. Supreme Court.

Pizer sees the expedited hearing schedule and the court’s decision to issue the stay as a compromise made by the court.

“The stay keeps things simpler,” she said.

Pizer said that until the hearing, both sides would be writing briefs. The defense will be arguing that they have standing in the case and that in his decision Judge Walker misread the law.

Ted Olson and David Boies, the two high-profile attorneys representing the plaintiffs in the case, will argue that the interveners have no standing since they are not the ones issuing marriage licenses. Their briefs will argue that the defendants presented no credible witnesses or evidence and the only ones harmed by Proposition 8 are same-sex couples waiting to get married.

Pizer said that the LGBT community should use this time wisely until the case is heard.

“We need to be educating our neighbors about why Judge Walker is correct,” she said.

This article appeared in the Dallas Voice print edition August 20, 2010.

—  Michael Stephens

Letters • 08.20.10

Why do we fight for a word?

This week the 9th Circuit Court of Appeals handed down its decision to halt the granting of same-sex marriage licenses in California until it considers the constitutionality of the state’s same-sex marriage ban.

So, here we go with round 2, or 200, or 2,000 — I have long ago stopped counting and stopped worrying about “The Battle.”

You see, I don’t believe the battle was fought correctly and therefore lost its direction.

Marriage. Really? Why are we so determined to have a word?

That’s all it really is, a word. I really thought the fight was for rights. Is getting “married” the only way to do that? Aren’t we worried about legal rights?

Seems to me we are. I mean after all, we are conducting our fights in the legal system.

How far along do you think we would be if perhaps instead of focusing on the word we focused on the prize — equal rights. Give them the word; give me the rights.

You can call the process established to grant the rights whatever — civil union, partnership agreement, legal arrangement or supercalifragilisticexpialidocious. I don’t see where that matters.

Also, just think of the possible additional troops we could recruit — straight couples that also desire the rights but don’t want the whole “married” thing.

The more the “marry-er,” as they say.

What does matter, at least in my opinion and world, is that I can make medical decisions for my partner when needed (or hell, just be able to see him in the hospital), that we can receive the retirement or social security benefits of the other just the same as any spouse, that we can buy property together and that property passes to either of us at the death of the other — you know, the important things, the rights.

I am all in for that fight, but not this word fight. Honestly I have to admit, I am not a fighter at heart so the thought of a tougher battle to achieve the goal is very unattractive to me.

So, hate me for being a man who is gay and doesn’t want to be in this battle.
It is your right.

David Dupuy
Dallas


Touched by TCC’s  national anthem

Last week I was driving out to DFW Airport very early in the morning, just before 7 a.m. I tuned my car radio to KEOM FM 88.5, which is the Mesquite Independent School District station, which mainly plays a format of 1970s and ’80s music.

Well they had just signed on for their broadcast day and played what I thought was one of the most beautiful renditions of the national anthem, “The Star-Spangled Banner,” that I had ever heard.

It was so good, I wanted to know who performed it.

So I called the morning station DJ, thinking that it must have been one of the military academies or the Mormon Tabernacle Choir.
Imagine my sheer delight to learn that it was Dallas’ own Turtle Creek Chorale.

It was truly magnificent. If you have never heard the TCC’s performance of the national anthem, make sure you make the effort to do so.

Bravo gentlemen!

Jay Narey
Dallas

……………………

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This article appeared in the Dallas Voice print edition August 20, 2010.

—  Michael Stephens

Pro-gay marriage attorneys may move to recover Prop. 8 court costs

Associated Press

SAN FRANCISCO — The lawyers who successfully sued to overturn California’s gay marriage ban are indicating they plan to recover attorney’s fees if the verdict is upheld on appeal.

In papers filed Tuesday, Aug. 17, attorneys for two same-sex couples and the city of San Francisco asked the court to extend a deadline for seeking reimbursement from the losing side. In this case, that would be the groups that put the ban on the 2008 ballot.

Sponsors of Proposition 8 defended the ban in court after California’s governor and attorney general refused to.

Lawyers familiar with scope of the case suggest the dollar amount would be in the millions.

Plaintiffs lawyer Theodore Boutrous Jr. says it makes sense to wait until the 9th U.S. Circuit Court of Appeals decides on the Aug. 4 ruling that overturned the ban.

—  John Wright

BREAKING: Appeals court grants stay of Prop 8 ruling; gay marriages won’t resume Wednesday

A federal appeals court reportedly has granted a stay of Judge Vaughn Walker’s ruling declaring Proposition 8 unconstitutional. This means same-sex marriages will not resume in California on Wednesday, the deadline for Walker’s previous stay to expire. From the National Center for Lesbian Rights at about 6 p.m. Dallas time on Twitter: “BREAKING: 9th Cir grants stay but puts case on expedited schedule & orders parties to address whether #Prop8 proponents have standing.”

This is a developing story. Stay tuned to Instant Tea for updates.

UPDATE: Some early analysis of the appeals court’s decision courtesy of the Courage Campaign:

Three things:

First, and drastically most importantly, the Court granted the stay. Consequently the thousands of couples who were waiting for the day of equality will have to wait at least a few more months until December.

Second, the Court wants this case to be resolved quickly. Appellants’ opening brief is due in just a month and the hearing will happen on December 6th. This is lightning quick for a Federal Court of Appeals, and it’s a very good sign. The Court understands that this case is important, and it doesn’t want it to linger.

Third, the Court specifically orders the Prop 8 proponents to show why this case should not be dismissed for lack of standing. Here’s a discussion of the standing issue. This is very good news for us. It shows that the Court has serious doubts about whether the Appellants have standing. Even better, the Court is expressing an opinion that its inclination is that the case should be dismissed. That being said, the panel that issued this Order (the motions panel) is not the same panel that will hear that case on the merits. The merits panel will be selected shortly before December 6th and we don’t know the three judges who will be on the merits panel. But this is a very good sign that the appeal could be dismissed on the ground of standing alone.

UPDATE NO. 2: Here’s a statement from the American Foundation for Equal Rights, which is representing the same-sex couples challenging Prop 8:

Today the United States Court of Appeals for the Ninth Circuit set a highly expedited schedule for briefing and argument of proponents’ appeal from the district court’s August 4, 2010 decision striking down California’s Proposition 8 as an unconstitutional violation of the rights of gay and lesbian citizens to due process and equal protection of the law under the Fourteenth Amendment, and it granted proponents’ request to stay the judgment of the district court’s order while the appeal is decided. This means that although Californians who were denied equality by Proposition 8 cannot marry immediately, the Ninth Circuit, like the district court, will move swiftly to address and decide the merits of Plaintiffs’ claims on their merits. Today’s order can be found here:  http://www.equalrightsfoundation.org/legal-filings/9th-circuit-ruling-on-motion-for-stay-pending-appeal/

“We are very gratified that the Ninth Circuit has recognized the importance and pressing nature of this case and the need to resolve it as quickly as possible by issuing this extremely expedited briefing schedule. As Chief Judge Walker found, Proposition 8 harms gay and lesbian citizens each day it remains on the books.   We look forward to moving to the next stage of this case,” said Attorney Theodore B. Olson.

“Today’s order from the Ninth Circuit for an expedited hearing schedule ensures that we will triumph over Prop. 8 as quickly as possible. This case is about fundamental constitutional rights and we at the American Foundation for Equal Rights, our Plaintiffs and our attorneys are ready to take this case all the way through the appeals court and to the United States Supreme Court,” said Chad Griffin, Board President, American Foundation for Equal Rights.

UPDATE NO. 3: We’ve posted a full story here.

—  John Wright

Clearing the confusion on lifting the stay: Walker’s stay order will expire as originally scheduled next Wednesday

Ken Upton, senior staff attorney in Lambda Legal’s South Central Regional Office here in Dallas, has cleared up the confusion over Judge Vaughn Walker’s ruling on lifting the stay of his order overturning Proposition 8.

Upton explains, in a comment to an earlier Instant Tea post, that Walker has declined to extend the stay he issued last week, but instead to let it expire as originally scheduled on Wednesday, Aug. 18, at 5 p.m. PST.

The 9th Circuit Court of Appeals has the option to issue its own stay of Walker’s ruling against Prop 8. I have heard a rumor that I can’t even begin to confirm yet that the 9th Circuit isn’t likely to issue a stay. If that is how it turns out, same-sex couples will again be able to legally marry in California beginning next Wednesday.

The question still remains as to whether the Yes on 8 campaign — which unsuccessfully defended Prop 8 in Walker’s court — even as legal standing to appeal Walker’s ruling. The actual defendants in the case were Gov. Arnold Schwarzenegger and Attorney General Jerry Brown, both of whom declined to defend the amendment and both of whom issued statements this week saying same-sex couples should be allowed to legally marry. Since the Yes on 8 people are actually only “defendant intervenors,” they might not have legal standing to appeal Walker’s decision, some experts have said.

—  admin