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

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


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

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


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


Good As You

—  admin

Would a Supreme Court Decision Favoring Gay Marriage Decrease Public Support?

When Iowa voters casted out three state judges that voted in favor of gay marriage rights earlier this month, I was reminded how many times a popular vote has been in favor of gay marriage: zero. Even in liberal Maine, voters struck down a gay marriage law.

Instead, gay marriage victories have usually come from the courts. Legalization of gay marriage in Iowa, Massachusetts, Connecticut, D.C., and New Hampshire all resulted from court decisions. Only in Vermont did gay marriage result from a legislative decision, but that still wasn’t a popular vote.

Now five gay marriage lawsuits threaten to bring the issue to the Supreme Court. The issue is whether a Supreme Court decision in favor of gay marriage would actually decrease public support. Right now, only 41% support letting LGBT people marry. Could this number go down?

The Risk of Backlash

So far court decisions in favor of gay marriage have brought about legislative backlash. Michael Lindenberger explained this week in Time Magazine:

For instance, Hawaii’s ruling pushed Congress to pass the Defense of Marriage Act. The 2003 Goodridge decision legalized gay marriage in Massachusetts but ignited a conservative reaction that saw 11 states vote to amend their constitutions to ban gay marriage — a tide that significantly boosted Republican turnout in critical states in the 2004 elections. . . It happened again just this month when voters tossed out three Iowa Supreme Court justices who had previously ruled in favor of gay marriage.

In fact, when it comes to civil rights, public opinion has historically decreased when courts have ruled against it. Abortion continues to divide the public forty years after the Court ruled in favor of abortion rights in Roe v. Wade.

Or, look at what happened after Furman v. Georgia, when the Court ruled that application of the death penalty had to be consistent to be constitutional. A majority of states passed laws favoring the death penalty, and public support for the death penalty has not decreased in the forty years since.

What Will Happen With Gay Marriage

I think, for whatever reason, gay marriage is different. Last year I talked about two reasons why gay marriage public support is higher in states where marriage laws are challenged.

First, judicial challenges raise public awareness of the issue. When a case reaches the state’s highest court, it puts the topic in everyday conversation, forcing people to take sides. Perhaps people don’t want to appear too conservative on social issues, and once forced to support it in conversation, commit to that support.

Second, court cases may be more likely in states where support for gay marriage has already increased. The more public support for gay marriage increases, the less state laws disallowing it reflect what people want. So, it makes it more likely that people will challenge the laws.

In addition, despite the legislative backlash that has so far followed court decisions in favor of gay marriage, public support has not shown a similar backlash. Instead, the nationwide trend of increasing gay marriage support has remained.

Ultimately, while a Supreme Court decision legalizing gay marriage could decrease public support, I don’t think it will.

[Cross-posted at the Gay Law Report, where I discuss LGBT laws and related news.]

Pam’s House Blend – Front Page

—  admin

DOJ will appeal decision in Major Margaret Witt’s DADT case

Remember yesterday how Assistant Attorney General Tony West told reporters how hard it was for the Obama administration to defend DADT and DOMA in the courts? Yeah, right.

On September 24, 2010
, Federal District Court Judge Ronald Leighton ruled that Major Margaret Witt’s discharge under DADT was unconstitutional. Leighton “started breaking up and was in tears” as he announced that Witt won her case against DADT and must be reinstated into the military. At the time, I wrote:

Now, we have to wait to see if the Department of Justice will appeal this case, too.

Well, guess what? Today, DOJ took the first step to appeal the decision that reinstated Major Margaret Will. Igor Volsky has the details:

Moments ago, the Justice Department appealed a federal district court ruling reinstating Air Force Major Margaret Witt after she was discharged from the military under Don’t Ask, Don’t Tell to Ninth Circuit Court of Appeals. But the government did not ask the court to stay the decision — suggesting that Witt will be able to serve in the Air Force through the duration of the appeal process.

How magnanimous of DOJ to allow her to serve.

No wonder we’re disappointed and disillusioned. (And, we are.) This appeal, aimed at Major Witt, seems particularly shameful.

UPDATE: This lame-ass statement from Robert Gibbs doesn’t help:

“Today, the Department of Justice filed a notice of appeal in a case involving a legal challenge to the Don’t Ask, Don’t Tell (DADT) policy, as the Department traditionally does when acts of Congress have been held unconstitutional. This filing in no way diminishes the President’s — and his Administration’s — firm commitment to achieving a legislative repeal of DADT this year. Indeed, it clearly shows why Congress must act to end this misguided policy. In recent weeks, the President and other Administration officials have been working with the Senate to move forward with the passage of the National Defense Authorization Act, including a repeal of DADT, during the lame duck.”

First, let’s be clear: despite the constant assertions to the contrary, DOJ did not have to file this appeal.

The filing further diminishes the President’s credibility with the LGBT community. He really better get that Defense bill with the DADT language passed during the lame duck. He promised. Repeatedly.

Witt Notice of Appeal


—  admin

Video: Huckabee in Iowa, applauds dangerous decision to turn retention process into discriminatory smoke signal

This man wants to be your next president of this supposedly church/state-separated nation, a job that will most certainly come with a few U.S. Supreme Court picks:

[Retention vote] wasn’t personal. It was just business. It was the business of protecting marriage the family. It was the business of believing that there really is a God to whom we are ultimately responsible and accountable, and that we are not merely answering to political governments set up by men, but we ultimately will answer to all things to a holy God who will ask whether or not we held not to a human standard but rather to an eternal standard that supersedes all the of the human standards that can be voted in or voted out. And when we stand by those things it is not personal, it’s business.

Full justice-chilling breadth:

[YT: iowanews1]


*Our many posts on the gay-focused Iowa retention vote and why it was so wrongheaded/dangerous (regardless of one’s personal view of the judges’ careers, btw): Iowa For Freedom Archive [G-A-Y]

Good As You

—  admin

Video: ‘Every time they have to make a decision, they’ll be thinking about ‘what will some people out there think?’, not what the law is’

Former Iowa Governor Robert D. Ray (R) defends his state’s court system against the so-called “Iowa For Freedom” campaign:

(H/t: One Iowa)


*Our complete Iowa For Freedom archive

Good As You

—  admin

It’s official: DOJ wants stay of Log Cabin DADT injunction and will appeal the decision

The Department of Justice has asked Judge Phillips to issue a stay of her DADT injunction and indicated that it will appeal the decision. This was not unexpected, but it is certainly disappointing. Here’s an excerpt from the introduction:

Defendants request that the Court issue an order to stay pending appeal of its Order, dated October 12, 2010 (Doc. 252), permanently enjoining enforcement of the “Don’t Ask, Don’t Tell” (DADT) statute, 10 U.S.C. § 654, and implementing regulations.1 Defendants also request that the Court issue an immediate administrative stay of its October 12, 2010 Order to allow time for the orderly litigation of that request for a stay pending appeal both before this Court and, if this Court were to deny the stay request, before the Court of Appeals. At a minimum, if this Court declines to enter a stay pending appeal or any administrative stay to allow its own consideration of the request, defendants request that the Court enter an immediate administrative stay to afford time for filing a request for a stay pending appeal in the Court of Appeals and an opportunity for that Court to consider that request in a meaningful and orderly manner. Given the urgency and gravity of the issues, defendants respectfully request that the Court rule on this ex parte application no later than noon PDT on Monday, October 18, 2010. If an administrative stay is not entered by that time, defendants intend to seek a stay pending appeal from the Court of Appeals and will request an immediate administrative stay from that Court to allow the orderly litigation of the stay request before that Court.

And, DOJ invoked the Pentagon Working Group as a reason for needing the delay:

In support of the President’s decision to seek a congressional repeal of the law, and as directed by the Secretary of Defense, the Department of Defense has established a high-level Working Group that is currently conducting a comprehensive review of the statute and how best to implement a change in policy in a prudent manner. The Working Group is nearing completion of its report to the Secretary, which is due on December 1. The immediate implementation of the injunction would disrupt this review and frustrate the Secretary’s ability to recommend and implement policies that would ensure that any repeal of DADT does not irreparably harm the government’s critical interests in military readiness, combat effectiveness, unit cohesion, morale, good order, discipline, and recruiting and retention of the Armed Forces.

In the first sentence above, you’ll notice a footnote. This is what it states:

1 As the President has stated previously, the Administration does not support the DADT statute as a matter of policy and strongly supports its repeal. 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.

Got that? Remember, DOJ does not have to appeal this decision. But it is going to do just that.

The Courage Campaign posted the DOJ application for the Emergency Stay here.

From here, Judge Phillips will probably issue her decision in the next couple days. She could order a stay pending the appeal — or not. She could do any number of things, including denying DOJ’s application. Whatever she does will lead to DOJ’s next step. This could mean that DOJ may have to ask the Ninth Circuit for a stay, too. What is clear is that the DOJ has every intention of appealing this ruling and dragging out this process. DOJ has 60 days to file its notice of appeal.

We’ll have more on this, as you can imagine.


—  John Wright

State lawmaker: Iowa marriage decision was ‘worst day of my life’

Mr. Koester (R-Ankeny), who has also said of the ruling that “God wrote His book long before men wrote any state constitution,” is running unopposed in his November re-election bid. Unless you count the particularly astute nine-year-old constituent who’ll grow up to write state history books in 2040 — she’s cultivating plenty of principled opposition this election season!

Good As You

—  John Wright

Court Says Air Force Nurse May Serve Openly; Impact of the Witt Decision

Major Margaret Witt is positioned to be the first lesbian service member to serve openly and without fear of discharge under “Don’t Ask, Don’t Tell” (DADT) after a district court ruling last Friday provided for her reinstatement.  The district court judge, Judge Ronald B. Leighton, was directed by the Ninth Circuit Court of Appeals to determine whether the specific application of DADT to Major Witt significantly furthered the government’s interest in promoting military readiness, unit morale and cohesion.  Judge Leighton found that the application of DADT to Major Margaret Witt did not further these interests.

Instead, Judge Leighton found that Major Witt “was an exemplary officer” and “an effective leader, a caring mentor, a skilled clinician, and an integral member of an effective team.”  In fact, he found that “her loss within the squadron resulted in a diminution of the unit’s ability to carry out its mission” – which is counter to the very interests offered as justifications for DADT.

In the decision, Judge Leighton also discusses the military’s ability to be effective while embracing diversity.  He says:

“The men and women of the United States military have over the years demonstrated the ability to accept diverse peoples into their ranks and treat them with the respect necessary to accomplish the mission, whatever that mission might be.  That ability has persistently allowed the armed forces of the United States to be the most professional, dedicated and effective military in the world.”

He also points out that the military has proven this “during the integration of blacks, other minorities and women into the armed forces.”

This decision is the first time the “Witt standard” – which was created during earlier review of Major Witt’s case – has been applied by a district court.  Under the Witt standard, the military is required to demonstrate that each individual discharged under DADT has a negative impact on his/her unit because of his/her sexual orientation.  The Witt standard is only applicable in the Ninth Circuit, which includes Alaska, Hawaii, Arizona, Nevada, California, Oregon, Washington, Montana and Idaho.  As noted on Friday by HRC President Joe Solmonese,   “had Major Witt been discharged in any other circuit in the country, she would not have had her day in court.”

Considering that the Justice Department declined to appeal the decision that led to the Witt standard, it is unlikely that it will contest Major Witt’s reinstatement.

Last week, legislative repeal of DADT was blocked when partisan, Republican obstructionism prevented the Senate from considering the National Defense Authorization bill, to which DADT repeal legislation is attached.

In addition, only two weeks ago, we saw a federal district court in the Ninth Circuit declare DADT unconstitutional.  Currently, that district court judge is determining if she will place a worldwide, military-wide injunction on the enforcement of DADT, a move the Justice Department fervently opposes.

DADT litigation will only increase while DADT remains on the books.  The Administration is wasting valuable resources defending the failed law.  After learning of the decision allowing for Major Witt’s reinstatement on Friday, Solmonese stated “it is time for Congress and the Administration to recognize that his failed law should be removed from the books once and for all.”

Human Rights Campaign | HRC Back Story

—  John Wright

White House (KInda) responds to DADT decision

Kerry Eleveld,
Chris Johnson and Andy Towle got this statement from Shin Inouye:

“The Justice Department is studying the decision, including the question of its scope and immediate effect and we expect them to announce their next steps after that review is completed. The president remains committed to legislative repeal of DADT, and he will continue to work with lawmakers to achieve that goal this fall. And he will continue to work closely with Secretary Gates, Admiral Mullen, and the Joint Chiefs of Staff on an ongoing study of how to best implement the repeal.”

They really just never can come out and say what we want to hear, can they? But, at least now we’ve got a commitment that the President intends to have the compromise repeal language pass “this fall.” Time is running out.

Chris Johnson also got this from the Pentagon’s spokeperson Cynthia Smith:

DOJ and DoD are in the process of reviewing this opinion.

The current law is still in effect.

Keep studying. Keep reviewing. Keep discharging.


—  John Wright

BREAKING: Ninth Circuit grants stay of Walker’s decision pending appeal

Just received this notice via email from the Ninth Circuit:

Filed order (EDWARD LEAVY, MICHAEL DALY HAWKINS and SIDNEY R. THOMAS) Appellants’ motion for a stay of the district court’s order of August 4, 2010 pending appeal is GRANTED. The court sua sponte orders that this appeal be expedited pursuant to Federal Rule of Appellate Procedure 2. The provisions of Ninth Circuit Rule 31-2.2(a) (pertaining to grants of time extensions) shall not apply to this appeal. This appeal shall be calendared during the week of December 6, 2010, at The James R. Browning Courthouse in San Francisco, California. The previously established briefing schedule is vacated. The opening brief is now due September 17, 2010. The answering brief is due October 18, 2010. The reply brief is due November 1, 2010. In addition to any issues appellants wish to raise on appeal, appellants are directed to include in their opening brief a discussion of why this appeal should not be dismissed for lack of Article III standing. See Arizonans For Official English v. Arizona, 520 U.S. 43, 66 (1997). IT IS SO ORDERED. [7441574] (JS)

So, the motion to stay is granted, pending appeal. That means marriages won’t begin on Wednesday or anytime soon.

The appeal has been expedited. Arguments will be held in early December. One other thing: This order states that Ninth Circuit Rule 31-2.2 does not apply, meaning no extensions. Under Rule 31-2.2 (a), “If good cause is shown, the clerk or a designated deputy may grant an oral request for a single extension of time of no more than 14 days to file an opening, answering or reply brief. Such extensions may be applied for and granted or denied by telephone.” No one gets the 14 days extension. Sounds like the judges want this case to move ahead without delay.

And, the appellants, meaning the pro-Prop. 8 side, have to explain why they have standing. That remains a major issue for them moving forward. For more on this issue, see Prof. David Cruz’s post: Do the Prop. 8 proponents have Standing to Appeal?

I’m sure we’ll have more on this soon.


—  John Wright