Ellis County Observer publisher Joey Dauben finally gets a court-appointed attorney

Joey Dauben

Joey Dauben, the publisher of the now-defunct Ellis County Observer, finally got to see a court-appointed lawyer this week to help him fight the three felony counts of child sexual abuse that have kept him in the Navarro County Jail without legal advice for almost two months now.

Edward Jendrzey, whose office is in Waxahachie in Ellis County, received the court-ordered appointment Thursday, Feb. 16. Jendrzey accepted the case after Steve Keathley, a Corsicana attorney whose wife is the president of the Navarro County Bar Association, declined an appointment by District Court Judge James Lagomarsino to represent the journalist.

In a telephone interview today, Jendrzey said, “Yes, he knows I’m representing him,” when asked whether he had met with his new client, who reached out for help from the media this week in a handwritten letter from jail. When a defendant declares himself to be indigent and asks for a court-appointed attorney, that is supposed to occur within 72 hours. In the letter, Dauben also again claimed he is innocent of the charges.

Jendrzey said his first step in Dauben’s representation will be to conduct an independent investigation of the case to learn the circumstances and to attempt to get Dauben’s $200,000 bond set by Lagomarsino lowered. “I’ll be meeting with the prosecutor about that,” Jendrzey said. Dauben’s family and friends have been unable to raise the 10 percent (or $20,000) payment bond agencies typically charge to get a defendant released from jail.

—  admin

A beer by any other name…

On the long list of ridiculous Texas laws the alcoholic beverage code would have to take up about half the space (although that whole “no marriage equality” thing is pretty far up there), but it seems like at least a part of our antiquated system of booze laws is getting an update. Under current state law “beer” can contain no more than 4% alcohol by volume, anything greater and it must be labeled as “ale” or “malt liquor.” If a recent ruling by US District Court Judge Sam Sparks holds that’s about to change.

A group of brewers sued the state arguing that the current restrictions violated their free speech. The judge agreed, and in a hilarious ruling poked fun at the Texas Alcoholic Beverage Commission for thinking they can redefine words by legislative fiat, and gave a shout-out to Austin’s annual bat festival.  From Austin360.com:

“TABC’s argument, combined with artful legislative drafting, could be used to justify any restrictions on commercial speech. For instance, Texas would likely face no (legal) obstacle if it wished to pass a law defining the word ‘milk’ to mean ‘a nocturnal flying mammal that eats insects and employs echolocation.’ Under TABC’s logic, Texas would then be authorized to prohibit use of the word ‘milk’ by producers of a certain liquid dairy product, but also to require Austin promoters to advertise the famous annual ‘Milk Festival’ on the Congress Avenue Bridge.”

 

—  admin

Court refuses to suspend lawsuit challenging DADT

LISA LEFF  |  Associated Press

SAN FRANCISCO — A federal appeals court has denied the government’s request to suspend a lawsuit challenging the military’s ban on openly gay servicemembers.

The 9th U.S. Circuit Court of Appeals in San Francisco issued an order Friday, Jan. 28 requiring the Department of Justice to file papers by Feb. 25 arguing why the court should overturn a Southern California trial judge who declared the “don’t ask, don’t tell” policy unconstitutional.

Government lawyers asked the 9th Circuit earlier this month to set aside the case because the Pentagon was moving quickly to satisfy the steps Congress outlined last month when it voted to allow the ban’s repeal. A Justice Department spokeswoman said it had no comment Saturday.

The appeals court did not explain in its order why it rejected the request. In his State of the Union address, President Barack Obama said he expected to finalize the repeal and allow openly gay Americans to join the armed forces before the end of the year.

On Friday, the vice chairman of the Joint Chiefs of Staff told reporters that the training of officers and troops the Pentagon has said is a predicate to full repeal would begin in February.

The Log Cabin Republicans, the gay political group whose lawsuit challenging “don’t ask, don’t tell” persuaded District Court Judge Virginia Phillips in September to enjoin the military from enforcing the policy, had opposed the government’s effort to put the case on hold.

R. Clarke Cooper, the group’s president, said Saturday that while he thinks the Pentagon’s efforts are sincere, the case should proceed as long as gay servicemembers still can be discharged.

“We said all along to the government we would drop our case if they would cease all discharges and remove all barriers to open service,” Cooper said.

Cooper, an Army reserve officer, said he knew of at least one service member facing a discharge hearing next month, even as the Pentagon moves forward with its training plan.

“We are not questioning the implementation process. We recognize the need for a deliberative process for implementing proper training materials and guidances for leadership,” he said. “But when you have a servicemember going before a discharge panel, this is kind of a ‘left hand-right hand’ thing that is happening.”

—  John Wright

Notable deaths: Wagner, Raggio, LaLanne

Carolyn Wagner

Carolyn Wagner

Former P-FLAG vice president Carolyn Wagner, 57, died of cancer in Tulsa.

Wagner became an advocate for the LGBT community after her son was a victim of bullying. She sued the Fayetteville, Ark., school district in a case that went to the U.S. Supreme Court, where she prevailed.

While he was a teenager, Wagner brought her son to Dallas to participate in the Gayla Prom, which was then held at the Dallas Grand Hotel in Downtown. At the time it was the only event of its type held anywhere in the region and one of the few in the country. P-FLAG Dallas was the event’s sponsor.

Wagner said at the event that she was delighted to have her son experience a healthy dating environment.

Wagner served as grand marshal of the Tulsa Pride parade in 2000. She founded the support group, Families United Against Hate.

She was a nurse who spent her career caring for children that were abuse victims and those with cancer and terminal illnesses. She founded Camp Rainbow for children with cancer.

Wagner died Jan. 18, and a memorial service was held Saturday. Donations may be made to P-FLAG.

Louise Raggio

Dallas women’s rights activist Louise Raggio, 91, died this weekend.

She was the first female Dallas County assistant district attorney. When Raggio was first hired she was paid half what the men in the department made. She was the first woman in Dallas to prosecute a criminal case and the first woman to serve as director of the State Bar of Texas.

After going into private practice, Raggio worked to get the Marital Property Act of 1967 passed. Prior to passage of that law, married women could not have their own bank accounts, apply for mortgages or have their own credit in Texas. Dallas District Court Judge Lorraine Raggio is her daughter-in-law. Her son, Greer Jr., ran for Congress in 2010 against incumbent Pete Sessions.

Jack LaLanne

Jack LaLanne, 96, the original TV fitness expert, died on Sunday. His show began in 1951 and ran for 34 years.

“The only way you can hurt the body is not use it,” LaLanne said. “Inactivity is the killer and, remember, it’s never too late.”

In 1955, at age 41, LaLanne swam handcuffed from Alcatraz to San Francisco. The year before, he set a world record swimming the length of the Golden Gate Bridge under water. In 1956, he set a world record for push-ups.

LaLanne opened his first gym in 1936. By the 1980s, he owned more than 200 Jack LaLanne’s European Health Spas. The company became Bally’s Total Fitness.

—  David Taffet

DOJ says DOMA justified to prevent ‘inequities’

LGBT advocates disappointed in Obama administration’s decision to defend law that he favors repealing

Lisa Keen  |  Keen News Service

The U.S. Department of Justice filed its brief Jan. 13 with a federal appeals court that will hear the government’s appeal of two district court decisions that found the Defense of Marriage Act unconstitutional.

The cases are Nancy Gill v. Office of Personnel Management, brought by Gay & Lesbian Activists & Defenders, and Massachusetts v. Department of Health and Human Services, brought by the state.

DOJ, led by Assistant Attorney General Tony West, argues that U.S. District Court Judge Joseph Tauro in Boston erred last year in finding one section of the federal Defense of Marriage Act (DOMA) unconstitutional.

It also argues that “back-and-forth changes” such as those experienced by California concerning the recognition of same-sex marriages “have the potential to cause inequities in the operation of federal programs, and could result in administrative difficulties across a variety of federal programs.”

“Should [a federal] agency begin awarding benefits in response to court decisions that might later be overturned?” asks the brief. “How should the agency treat a couple who is married, then moves to a state where that marriage is not recognized? These questions highlight the administrative difficulties that federal agencies might face if federal law were automatically tied to state law in an area subject to substantial and sometimes rapid change.”

Mary Bonauto, civil rights director at GLAD, says the “touchstone is whether the marriage is valid under state law.”

“Even if a state reversed itself on marriage licensing for same-sex couples by passing an amendment, as happened in California,” said Bonauto, “that change does not affect the validity of the existing marriages.”

In response to the concern about same-sex couples moving from one state to another, said Bonauto, “The general rule is that if a couple is considered married in the state of their residence at the time they apply for a federal marital benefit, then they are married for purposes of that benefit even if they later move to a state that disrespects their marriage.”

Last July, Judge Tauro ruled, in Gill, that DOMA violates the equal protection and due process rights in the U.S. Constitution, and, in Massachusetts, that DOMA violates the 10th Amendment right to exercise control of certain state issues.

Evan Wolfson, head of the national Freedom to Marry group, said he “regrets” DOJ “continues to defend a law that President Barack Obama has repeatedly said is discriminatory.”

“Also disappointing is that the Justice Department is urging the court to give this discriminatory law a presumption of constitutionality,” said Wolfson. “The Justice Department should be asking the courts to examine DOMA with skeptical eyes, not rubberstamp discrimination.”

DOJ’s brief argues that the appeals court should use only the most minimal standard — rational basis — in scrutinizing the reasons the government gives to justify DOMA’s ban on recognition of married same-sex couples when it comes to having access to federal benefits made available to married straight couples. It then claims that the rational justifications behind DOMA are:

  • to preserve a national status quo at the federal level regarding marriage,
  • to ensure “uniform application” of federal law regarding marriage benefits, and
  • to show respect for each state’s sovereignty in developing its own policy concerning marriage.

The latter justification will probably make for an interesting discussion before a three-judge panel of the First Circuit U.S. Court of Appeals later this year. The First Circuit is located in Boston, Massachusetts, which famously became the first state to honor its state constitutional mandate of equal protection with regards to the issuance of marriage licenses.

The Massachusetts Attorney General’s office argued, in its district court brief, that DOMA is not showing respect for the sovereignty of Massachusetts.

“Instead, Congress chose to force Massachusetts (and other States) to violate the equal protection rights of its citizens or risk federal funding,” argued Massachusetts’ brief. “That is not neutrality; rather, it significantly burdens the ability of States to adopt any definition of marriage that does not match the federal one. …”

But while arguing that Congress needs to show respect for each state’s sovereignty, DOJ also argues Congress “could” reasonably conclude that a “uniform federal definition for the purposes of federal law would most consistently address variations between states that permit same-sex marriage and those that do not.”

“Without DOMA,” said DOJ, “federal benefits would vary for same-sex couples from state to state.”

Of course, that’s true for heterosexual couples, too. Only those straight couples who are married are eligible to receive federal marriage benefits. But DOJ adds that “while it may be preferable as a policy matter for Congress to have provided the same benefits to all married couples, the uniform path that Congress chose was permissible.”

The Defense of Marriage Act (DOMA) was introduced by U.S. Rep. Bob Barr (R-GA) and signed into law in 1996 by Democratic President Bill Clinton. Wolfson noted that both have since “repudiated” the law.

GLAD and the Massachusetts Attorney General’s office both filed lawsuits challenging DOMA’s Section 3, which limits the definition of marriage for federal purposes to one man and one woman.

There are three other cases challenging DOMA now in the federal courts. GLAD and the ACLU also filed two other lawsuits challenging DOMA — Pederson v. OPM in a Connecticut federal district court and Windsor v. U.S. in a New York federal district court. Both of these cases, if appealed, will come before the 2nd District U.S. Court of Appeals. Lambda Legal Defense argued its case, Karen Golinksi v. OPM, in federal district court in San Francisco last month. In that case, Lambda’s Marriage Project Director Jenny Pizer is arguing that 9th Circuit court employee Golinski should be able to obtain health coverage for her same-sex spouse the same as other federal court employees can obtain for their spouses. OPM, headed by openly gay appointee John Berry, instructed the 9th Circuit’s employee insurance carrier not to enroll Golinski’s same-sex spouse for coverage. The case is awaiting a decision from U.S. District Court Judge Jeffrey White, an appointee of President George W. Bush.

© 2011 by Keen News Service. All rights reserved.

—  John Wright

N.C. high court voids lesbian lawmaker’s 2nd-parent adoption

GARY D. ROBERTSON | Associated Press

RALEIGH, N.C. — North Carolina’s highest court on Monday, Dec. 20 voided a state senator’s adoption of her former domestic partner’s biological son, a move that appears to close a method for same-sex couples to adopt unless the Legislature steps in.

The state Supreme Court ruled 5-2 that the adoption of Melissa Jarrell’s son by state Sen. Julia Boseman was invalid because a Durham County District Court judge waived a requirement five years ago that Jarrell had to give up her parental rights in the process.

Under the adoption plan approved by the lower court, Boseman became an adoptive parent while Jarrell retained full parental rights as well.

However, Associate Justice Paul Newby wrote for the majority that the adoption never occurred in the eyes of the law because lawmakers have made clear the biological parent must terminate a legal relationship with the child. That part of the ruling favored Jarrell, who had sued to negate the adoption after the couple separated.

She and Boseman, North Carolina’s first openly gay member of the General Assembly, had been living together when Jarrell gave birth to Jacob in 2002.

The majority of justices let stand another lower court ruling allowing the two to have joint custody of the child, saying it would be in Jacob’s best interest for the women, who have been sharing parental responsibilities, to rear him.

Still, the ruling eliminates a method for same-sex couples to adopt and could raise legal questions about so-called “second parent” adoptions like this one. They have been granted in Durham and Orange counties in recent years, according to testimony and court documents.

“If our uniform court system is to be preserved, a new form of adoption cannot be made available in some counties but not all,” Newby wrote.

For such two-parent adoptions to occur by parents of the same gender — granting inheritance and other rights to the child — same-sex marriage would have to be created in North Carolina or the adoption law would have to be changed, said Michelle Connell, a Winston-Salem lawyer and chairwoman of the family law section of the North Carolina Bar Association.

Several Christian groups filed briefs arguing the adoption was illegal, while law professors and the American Civil Liberties Union urged the court to uphold Boseman’s adoption to ensure the child and others in similar situations would be in stable family environments.

Those issues are best addressed at the General Assembly, Newby wrote. At least 27 states permit second-parent adoptions through state law or based on evidence in local courts, according to the Human Rights Campaign, a national group that works for lesbian, gay, bisexual and transgender equality.

“The avenue is going to have to be changing the statute,” Connell said in an interview. Otherwise, she said, this ruling closes down the method completely. Republicans taking charge of the Legislature next month are considering whether to vote on a constitutional amendment that would prohibit gay marriage.

Associate Justice Patricia Timmons-Goodson wrote in a dissenting opinion that Jarrell was barred from challenging the decree because she missed deadlines to do so. In a separate opinion, Associate Justice Robin Hudson said there was no explicit prohibition against or permission for a waiver like the one Jarrell received.

“The majority overlooks the interests of this child and promotes (Jarrell’s) rights over those of the child, in direct contravention of the law as written,” Hudson wrote in arguing for a Court of Appeals ruling earlier this year upholding the adoption.

Jarrell attorney Leslie Fritscher said her client was pleased with the adoption being voided but was still reviewing the ruling granting joint custody.

Lawyer Jim Lea, representing Boseman, said the senator is pleased that she will remain part of Jacob’s life but is unhappy with the adoption decision. “If you have two loving parents that want to adopt a child … one should not be forced to comply with North Carolina statute by terminating parental rights,” he said.

Boseman, a Democrat from Wilmington, was first elected to the Legislature in 2004. She didn’t seek re-election this year and leaves office at the end of this month.

—  John Wright

Lambda Legal DOMA case heard in California

After the “don’t ask, don’t tell” win this week, mainstream media immediately looked for what we’d be after next. An ABC affiliate in California picked up on partner benefits.

A Lambda Legal case, Golinski v. US Office of Personnel Management, was heard before a district court judge in Northern California on Dec. 17.

“Here it’s very difficult for the government to justify giving unequal health insurance to employees that are doing equal work,” said Lambda Legal Marriage Project Director Jennifer Pizer.

The government’s case is based on the Defense of Marriage Act, which they claim is the basis for denying an employee’s partner health benefits.

In this case, Karen Golinski is an attorney who worked for the San Francisco Federal Appeals Court. She has been a federal employee for 19 years. In 2008, she married her partner. They have a 7-year-old son. Denying her wife benefits given other employees is discriminatory, she claims.

As in other recent cases, this one puts the Obama administration in the position of saying it supports the repeal of DOMA, then sending an attorney to defend the law. If Golinski wins, the ruling probably will apply only to her case.

—  David Taffet

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

Court allows military to continue enforcing DADT pending appeal

LISA LEFF  |  Associated Press

SAN FRANCISCO — A federal appeals court on Monday, Nov. 1 indefinitely extended its freeze on a judge’s order halting enforcement of the military’s “don’t ask, don’t tell” policy, heightening pressure on the Obama administration to persuade the U.S. Senate to repeal the law before a new Congress is sworn in.

A divided three-judge panel of the 9th U.S. Circuit Court of Appeals granted the U.S. government’s request for a stay while it challenges the trial court’s ruling that the ban on openly gay service members is unconstitutional.

The same panel, composed of two judges appointed by President Ronald Reagan and one appointed by President Bill Clinton, on Oct. 20 imposed a temporary hold keeping “don’t ask, don’t tell” in place.

Monday’s decision means gay Americans who disclose their sexual orientations still can’t enlist in the armed forces and can be investigated and ultimately discharged if they already are serving.

“We continue to warn service members that it is unsafe to come out as long as this law remains on the books,” said Aubrey Sarvis, executive director of the Servicemembers Legal Defense Network.

In an eight-page order, two judges said they were persuaded by the Department of Justice’s argument that U.S. District Court Judge Virginia Phillips’ worldwide injunction against the policy “will seriously disrupt ongoing and determined efforts by the Administration to devise an orderly change.”

“The public interest in enduring orderly change of this magnitude in the military — if that is what is to happen — strongly militates in favor of a stay,” Judges Diarmuid F. O’Scannlain and Stephen S. Trott wrote in their majority order. “Furthermore, if the administration is successful in persuading Congress to eliminate (the policy), this case and controversy will become moot.”

Another reason they gave for imposing the freeze was decisions by four other federal appeals courts that cast doubt on whether Phillips exceeded her authority and ignored existing legal precedents when she concluded gays could not serve in the military without having their First Amendment rights breached.

Judge William Fletcher entered a partial dissent, saying he would have preferred the panel had heard oral arguments before granting the stay. Fletcher said he thinks “don’t tell, don’t tell” should not be used to discharge any existing service members while the case was on appeal.

“Defendants would not be required during the pendency of the appeal to change their recruiting practices, to change their personnel manuals, or, subject only to the requirement that they not actually discharge anyone, otherwise to change their practices,” Fletcher said.

President Barack Obama repeatedly has said he opposes “don’t ask, don’t tell” but favors ending it legislatively instead of through the courts. Over the summer, he worked with Democrats to write a bill that would have lifted the ban, pending completion of a Defense Department review due Dec. 1. The legislation passed the House but was blocked in the Senate.

The president has pledged to push for another vote during Congress’ lame duck session after Tuesday’s elections.

“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,” said R. Clarke Cooper, executive director of Log Cabin Republicans, the gay rights group that sued to overturn “don’t ask, don’t tell” in Phillips’ court,

The court ordered the government to submit its brief in its broader appeal by Jan. 24 and gave Log Cabin Republicans until Feb. 22 to reply. It did not schedule oral arguments in the case.

“For the reasons stated in the government’s submission to the appellate court, we believe the stay is appropriate,” Pentagon spokesman Bryan Whitman said.

—  John Wright

Dallas County ballots include 3 gay candidates

Log Cabin president says election offers LGBT voters several viable Republican candidates to back

DAVID TAFFET  |  Staff Writer taffet@dallasvoice.com

The ballot for this year’s election is long — nine pages in some parts of Dallas County. Voters will decide races for district attorney, county clerk and county judge in addition to a number of family, district and criminal court judges.

Those are in addition, of course, to all statewide positions and members of the Texas and U.S. House of Representatives.

Four propositions also appear on the ballot. Two countywide questions would legalize beer and wine sales throughout Dallas County. Two are city questions about selling two parks.

Three openly gay candidates appear on the ballot. Gary Fitzsimmons is seeking re-election as county clerk. Tonya Parker is running for 116th Civil District Court judge. And Peter Schulte appears on the ballot in parts of the city. He is challenging Dan Branch for the Texas House in a district that includes parts of Oak Lawn.

All three are Democrats.

Log Cabin Republicans President Rob Schlein touted a number of Republican candidates, especially some running for judicial positions.

“Jonathan Neerman is an attorney and lined up quite a few competent people who know what it takes,” Schlein said.

Neerman is chairman of the Dallas County Republican Party.

This is not a complete list but highlights some races of interest in the LGBT community.

District Clerk
Former City Councilman Craig Holcomb is treasurer of Fitzsimmons’ re-election campaign.

“As Dallas County district clerk, he has moved that office into the 21st century,” Holcomb said of Fitzsimmons.

For the first time, all documents are now transmitted electronically.

Fitzsimmons has saved almost $1 million for his office since he was first elected in 2006 when compared with his predecessor during the previous four years. He also removed a one-year backlog of family court filings.

“And I’ve never seen him work as hard as he has in the last four years,” Holcomb said.

Fitzsimmons worked for Holcomb for 15 years.

Stonewall Democrats President Erin Moore said, “He’s one of the more competent elected officials in Dallas County.”

Fitzsimmons’ opponent in the race is Tammy Barnes, 47. She has a bachelor’s degree in law enforcement and is a candidate for a masters’ in criminal justice from the University of North Texas.

Barnes is a member of the Lancaster Zoning Board of Adjustment,  a Big Sister volunteer and president and casework volunteer for Family Outreach of Southern Dallas.

County Judge
Clay Jenkins defeated County Judge Jim Foster in the Democratic primary and now faces Republican Wade Emmert in the general election.

“We need to have someone who sees the county as needing tending and not as their own personal playground,” Moore said of the county judge’s office. “Clay has a good perspective on that.”

She said he has the personality and wherewithal to be a good county judge.

Jenkins served as an intern to U.S. Rep. Martin Frost and was Oscar Mauzy’s law clerk when he served on the Texas Supreme Court.

Jenkins is president of the law practice Jenkins & Jenkins, with offices in Dallas and Waxahachie. This is his first run for public office.

Emmert is also an attorney and serves on the Cedar Hill City Council.

“On the City Council, he develops budgets and does the things that are needed as county judge,” said Log Cabin Republicans of Dallas President Rob Schlein.

Emmert often attends Log Cabin meetings and Schlein believes that if elected he’d be open and accessible to the LGBT community.

County Commissioner District 4
Former Dallas City Council member Elba Garcia is challenging 16-year incumbent Ken Mayfield for County Commissioner District 4.

Mayfield is known for his combative style in Commissioners Court. Fitzsimmons called him “the most homophobic elected official in Dallas County.”

In 1995, Mayfield signed a letter with two other commissioners regarding condom distribution.

“We don’t want anyone, especially anyone in authority, telling our children or future grandchildren that it’s an approved or acceptable lifestyle to be a homosexual, a prostitute or a drug user,” Mayfield and the others wrote.

Garcia, on the other hand, is seen as a strong ally of the LGBT community. She served four terms on the Dallas City Council representing North Oak Cliff.

Moore called the county commissioner seat critical when it comes to funding HIV services at Parkland hospital.

“She was not only there for us, she was first in line leading the effort,” Moore said of Garcia’s tenure on the council. “She was instrumental in passing the city’s nondiscrimination ordinance.”

But Mayfield, Moore said, is one of the LGBT community’s worst enemies.

In the last days leading up to the election, Mayfield has been accusing Garcia of voter fraud. Mayfield’s supporters said that absentee ballots were sent when none were requested and they charge that Garcia encouraged people to vote twice.

No charges have been filed.

District Attorney

Danny Clancy is challenging incumbent Democrat Craig Watkins for Dallas County district attorney.  Although Watkins sought LGBT support in his first campaign, Moore said that as district attorney he has been a divisive figure, accused of being a celebrity D.A. and not doing his job here.

Neerman believes that more than any other race, this is the one for the LGBT community to consider voting Republican.

Clancy has been an assistant district attorney, criminal court judge and private attorney. He has prosecuted more than 250 cases and, as judge, presided over more than 450 cases.

“Clancy will protect all of Dallas County,” said campaign spokesman Brian Mayes.

He said that this race is between a D.A. caught in a number of ethical controversies who refuses to pursue a number of cases and a prosecutor who is tough on crime.

Mayes said sexual orientation would play no role in how tough Clancy would prosecute. He said that he’s looking for support from Log Cabin Republicans and the rest of the LGBT community.

“He’s a good guy,” said Mayes. “His heart’s in the right place. He has no political agenda in fighting crime.

“It’s about competence vs. incompetence,” said Schlein. “Not about left and right.”

County Criminal Court No. 2
Dan Montalvo is challenging incumbent King Fifer for County Criminal Court No. 2.

Schlein said Montalvo spoke to Log Cabin at the recent Grand Ol’ Party. He told the group he’s challenged about being Hispanic and Republican just as Log Cabin is questioned about being gay and Republican. Schlein believes he’d be a fair judge.

Montalvo is challenging Democratic incumbent Jeff Rosenfield.

116th Civil District Court
Tonya Parker faces Mike Lee for 116th Civil District Court.

“She’s one of the most eminently qualified people running to be judge and we support her 100 percent,” Moore said.

Among her honors, Parker was listed as a rising star by Texas Monthly three times and in 2006 was named Dallas Association of Young Lawyers Outstanding Young Lawyer.

Mike Lee is an attorney whose practice focused on civil litigation. He has significant experience representing minors in cases before Dallas County juvenile courts.

“Mike Lee’s a good guy,” said Schlein. “He’s someone gay people should be comfortable with,” he said.

193rd District Court
Carl Ginsberg is an active member of Dallas Stonewall Young Democrats. He took the lead in educating his colleagues about gender-marker changes and said that there’s statutory authority to make those changes.

“Believe it or not, there’s actually the legal authority in Texas to do it,” Ginsberg told Dallas Voice earlier this year.

Dallas Stonewall Young Democrats President Pennington Ingley said, “He’s an avid supporter of ours. He’s very approachable and has been a strong supporter of LGBT issues.”

His opponent is Republican Wes Johnson.

194th District Court

Judge Ernest White presided over the Jimmy Lee Dean hate crime trial. The jury handed down a sentence even tougher than the one the prosecutor suggested.

Michael Robinson was a witness to the crime. He testified in the case and sat through the entire trial. He said he was impressed with how White handled the case and allowed his testimony to be given.

“The LGBT community needs more judges like Judge Ernest White to allow crimes like these to be heard fairly and without any bias towards the community,” Robinson said.

“Judge White allowed all the evidence to be heard so the jury could make a decision to convict Bobby Singleton [to receive] 75 years and Jonathan Gunter [to receive] 30 years [in prison].”

His opponent is Republican David Lewis.

292nd Judicial District Court

Lisa DeWitt is challenging incumbent Democrat Larry Mitchell.

“She’s a member of Log Cabin,” Schlein said of DeWitt, “an open and active supporter.”

DeWitt uses her Log Cabin endorsement in all of her campaign literature and stood up for the group when questioned about her support and involvement, Schlein said.

Log Cabin honored her recently at their Grand Ol’ Party. She has been a county attorney and a public defender.

The Democrat in the race is Larry Mitchell.

298th Civil District Court
Emily Tobolowsky is a longtime member of Stonewall Democrats but her current claim to fame is from her cousin Stephen. He plays disgraced gay music teacher Sandy Ryerson on Glee.

Before her 2007 election, Tobolowsky was an attorney with experience from commercial, real estate and employment litigation to family law.

Her opponent in the race is Bryce Quine, a trial lawyer and a partner at the law firm of Locke Lord Bissell & Liddell LLP.

301st Family District Court

Judge Lynn Cherry, a Democrat, ruled against a transgender DART employee and overturned a gender-marker change at the request of DART.

That ruling began a push by a number of groups to get DART to change their discriminatory policy against transgender employees and had LGBT groups questioning why the agency would interfere in a family court matter.

Cherry hasn’t commented on the matter or explained why an employer’s opinion would be considered in a family court matter.

Her opponent is George White, a family court attorney with 35 years experience. He has completed more than 8,000 cases. He was member of the Texas Army National Guard. Schlein calls him affable and said he’s been to a couple of Log Cabin meetings.

302nd Family District Court  Judge Tena Callahan declared that the state’s ban on same-sex marriage violated the equal protection clause of the 14th amendment to the U.S. Constitution. The decision related to a gay couple who had married in Massachusetts and filed for divorce in Texas.

Attorney General Greg Abbott challenged the divorce. A three-judge appeals court panel overturned her decision. The divorce is again on appeal. “She would say she made the right decision and was just doing her job,” Moore said.

Her opponent is family law attorney Julie Reedy, who endorsed Callahan before deciding to run for the office herself. Reedy’s campaign website refers to Callahan’s decision by saying, “I promise NOT to legislate from the bench and will serve the court to the letter of the law.”

Propositions
Two countywide propositions appear on the ballot in Dallas. The first would lift the restriction on sale of beer and wine in convenience and grocery stores throughout the county. The second would allow restaurants throughout the county to sell beer and wine without being private clubs.

This article appeared in the Dallas Voice print edition October 29, 2010

—  Kevin Thomas