Court won’t release videos from Prop 8 trial

LISA LEFF | Associated Press

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

—  John Wright

Araguz booking raises questions about Harris County jail’s treatment of transgender inmates

Judge Vanessa Valasquez

Judge Vanessa Valasquez

According to the Houston Chronicle, Nikki Araguz has been booked into the Harris County Jain after arriving 40 minutes late for a scheduled court appearance on Friday. The court date was to allow Araguz to plead guilty to charges that she stole a watch from an acquaintance last year. Under the proposed plea bargain Araguz would have paid $2,600 in restitution and served 15 days in county jail. State District Judge Vanessa Velasquez, a Republican first appointed to the bench by Gov. Rick Perry, responded to Araguz’ apologies for her tardiness with “It’s too late for sorry,” ordering bailiffs to escort her to a hold cell next to the courtroom.

Araguz is the widow of firefighter Capt. Thomas Araguz who died in the line of duty last year. Capt. Araguz’s ex-wife and mother have sued to claim the portion of his survivor’s benefits reserved for the spouses of slain firefighters, claiming that since Nikki Araguz was identified as male at birth the marriage was invalid under Texas’ laws prohibiting the recognition of same-sex marriage. Mrs. Araguz’s birth certificate identifies her as female, as does her state issued identification.

Araguz’s booking has raised questions about the Harris County’s treatment of transgender detainees. The Sheriff Department’s Public Information Inquiry System listed Araguz using her male birth name on Friday. They have since removed the name from the site’s searchable database but have retained the record, listing it under the department’s “special person number” (SPN) filing system. The SPN record includes Araguz’s birth name. The Sheriff’s office has not returned calls from Houstini asking why the department is not using Araguz’s legal name and if this is common practice.

According to a friend who has visited Araguz at the jail her identity bracelet correctly identifies her gender as “F” – but reflects Araguz’s birth name, not her legal name. Araguz is segregated from the general jail population, but can receive visitors during regular visiting hours.

Araguz will remain in the Harris County Jail until Jan 25 when she is scheduled to appear again before Judge Velasquez.

—  admin

Top 10: Trans widow continued her fight

araguz2

VOWING TO WIN | Nikki Araguz says she will appeal her case all the way to he U.S. Supreme Court if necessary. (Courtesy of Nikki Araguz)

No. 8

The Texas Constitution defines marriage as between one man and one woman, but how will the state define “man” and “woman”?

Transgender marriage cases in Dallas and Houston could force the Texas Supreme Court — or even the U.S. Supreme Court — to ultimately decide the thorny issue.

In Houston, transgender widow Nikki Araguz has appealed a district judge’s ruling denying her death benefits from her late husband, Thomas Araguz III, a volunteer firefighter who was killed in the line of duty in 2010.

The judge, Randy Clapp, granted summary judgment to Thomas Araguz’s family, which filed a lawsuit alleging the couple’s 2008 marriage is void because Nikki Araguz was born male, and Texas law prohibits same-sex marriage.

The Araguz family’s argument relies heavily on a San Antonio appeals court’s 1999 ruling in Littleton v. Prange, which found that gender is determined at birth and cannot be changed.

However, LGBT advocates say the Littleton ruling is unconstitutional, goes against medical science and isn’t binding in other parts of the state, where it has not always been followed.

In Dallas, a district judge apparently reached the opposite conclusion from Clapp this November — denying a similar motion for summary judgment.

James Allan Scott, a transgender man, is seeking a divorce settlement from his wife of 13 years, Rebecca Louise Robertson. However, Robertson wants to have the marriage declared void because Scott was born a biological female.

District Judge Lori Chrisman denied Robertson’s motion for summary judgment, which leaned heavily on Littleton. The judge provided no explanation for her ruling allowing the matter to proceed as a divorce, at least for now.

It’s unclear whether Texas Attorney General Greg Abbott plans to intervene in the Dallas case. Abbott has intervened in same-sex divorce cases in Austin and Dallas, seeking to block them. But thus far he has stayed above the fray on transgender marriage, even though it presents overlapping issues.

After a transgender woman and a cisgender woman applied for a marriage license in 2010, the El Paso County clerk requested a ruling from Abbott about whether to grant it. But Abbott opted not to weigh in, with his office saying it would instead wait for court rulings in the Araguz case. The El Paso couple was later able to marry in San Antonio, where the county clerk went by Littleton v. Prange.

In response to the Araguz case, a bill was introduced in the Texas Legislature this year to ban transgender marriage. The bill would have removed proof of a sex change from the list of documents that can be used to obtain marriage licenses. Strongly opposed by LGBT advocates, it cleared a Senate committee but never made it to the floor.

Trans advocates said the bill also would have effectively prohibited the state from recognizing their transitioned status — or, who they are — for any purpose.

The problem for socially conservative lawmakers is, they can’t have it both ways. Marriage is a fundamental right that courts have said can’t be taken away from a person completely. So no matter what, Texas will be forced to allow a version of same-sex marriage.

Which is why some believe the cases could help undo the marriage amendment.

— John Wright

This article appeared in the Dallas Voice print edition December 30, 2011.

—  Kevin Thomas

Trans man wins first round in divorce battle

Judge declines to void marriage between Robertson, Scott in case that could set precedent, but wife’s lawyer downplays significance

Trans

WINNING ROUND 1 | Attorney Eric Gormly, right, says Judge Lori Chrisman Hockett’s decision to deny a motion to void the marriage between trans man James Allan Scott, left, and his wife Rebecca Louise Robertson is, as far as he knows, “the first time any Texas court has ruled that a transsexual man who marries a biological woman is in a legitimate marriage.” (John Wright/Dallas Voice)

JOHN WRIGHT  |  Senior Political Writer
wright@dallasvoice.com

When Rebecca Louise Robertson and James Allan Scott married in Dallas in 1998, Robertson was well aware and fully supportive of Scott’s status as a transgender man, court records indicate.

But when the couple split up after 12 years in 2010, Robertson sought to have their marriage declared void — based on the fact that Scott was born a biological female, and Texas law prohibits same-sex marriage.

Last week, a Dallas County district judge rejected Robertson’s motion for a summary judgment in the case, declining to void the marriage and allowing the matter to proceed as a divorce.

Attorney Eric Gormly, who represents Scott, said if the judge had declared the marriage void, it would have prevented his client, who’s physically disabled, from obtaining a fair division of the couple’s property.

Gormly, who specializes in LGBT law, called the ruling from Judge Lori Chrisman Hockett a significant victory for transgender equality in Texas.

“To our knowledge, this is the first time any Texas court has ruled that a transsexual man who marries a biological woman is in a legitimate marriage,” Gormly said.

Unsettled law

The issue of transgender marriage has made headlines in Texas of late, thanks in large part to the case of Nikki Araguz.

Araguz, a transgender woman, is waging a high-profile fight to receive death benefits from her late husband, Thomas Araguz III, a volunteer firefighter who was killed in the line of duty last year.

In May, a district judge in Wharton County ruled against Nikki Araguz. The judge granted summary judgment to Thomas Araguz’s family, which filed a lawsuit alleging that the couple’s 2008 marriage is void because Nikki Araguz was born a man.

Nikki Araguz has appealed the decision, and LGBT advocates believe Hockett’s ruling in the Dallas case could help the transgender widow’s cause.

In both cases, motions seeking to have the marriages declared void relied heavily on a San Antonio appeals court’s 1999 ruling in Littleton v. Prange, which found that gender is determined at birth and cannot be changed.

However, critics argue that the Littleton decision is unconstitutional and isn’t binding in other parts of Texas.

In response to the Araguz case, a bill was introduced in the Texas Legislature this year to ban transgender marriage. The bill would have removed proof of a sex change from the list of documents that can be used to obtain marriage licenses. Strongly opposed by LGBT advocates, it cleared a Senate committee but never made it to the floor.

Meanwhile, Texas Attorney General Greg Abbott, a Republican who recently intervened in two same-sex divorce cases to try to block them, has thus far stayed out of the fray over transgender marriage.

After a transgender woman and a cisgender woman applied for a marriage license in 2010, the El Paso County clerk requested a ruling from Abbott about whether to grant it. But Abbott opted not to weigh in, with his office saying it would instead wait for court rulings in the Araguz case. The couple was later able to marry in San Antonio, where the county clerk went by Littleton v. Prange.

A spokesman for Abbott’s office didn’t return a phone call seeking comment this week about Hockett’s ruling in the Dallas case. But Gormly said he’d welcome the challenge if Abbott chooses to intervene.

“Bring it on,” Gormly said. “Let him give it his best shot. … I’ve got to think that Greg Abbott has more important issues to deal with.”

Attorney Thomas A. Nicol, a divorce specialist who represents Robertson, said he’s already notified the AG’s office about Hockett’s ruling.

“I think certainly the attorney general, if it wants, can certainly jump in and say they have standing because it appears the statute is not being followed,” Nicol said.

He called Hockett’s ruling “disappointing” but downplayed its significance.

Nicol said for his motion to be denied, Gormly needed to show only that one material fact was in dispute. Hockett provided no explanation in her one-page ruling dated Nov. 21, and Nicol said he now expects the judge to fully address the transgender marriage issue at trial.

“It’s hardly groundbreaking,” Nicols said of Hockett’s denial of summary judgment, which cannot be appealed. “It’s a non-event except for these two litigants, so I’m a little bit surprised that press releases were issued at this stage of the game, because nothing’s happened yet.”

From house-husband to activist

This coming weekend, the 57-year-old Scott will move out of a five-bedroom, 3,200-square foot house in Cedar Hill — and into a small rental cottage. Scott is being evicted after the house, which the couple built together in 2001, went into foreclosure.

Scott, who’s disabled from scoliosis, said he was a faithful “house husband” — he did the grocery shopping, took care of the dogs and provided emotional support — while Robertson worked as a radiologist at the Dallas VA Medical Center. “The only thing I didn’t do was cook,” Scott said.

Scott and Gormly allege that in July 2010, Robertson opened a personal bank account and cut him off from the couple’s funds.

“After 12 years of marriage, she basically was trying to shove him overboard without a life jacket and sail off with her new boyfriend,” Gormly said.

After Robertson filed to declare the marriage void in September 2010, Scott filed a counter petition for divorce in February. In June, Robertson filed her motion for summary judgment.

Gormly said the divorce likely would have been final six months ago if it hadn’t been for the transgender marriage issue. Instead, both parties have racked up tens of thousands of dollars worth of legal bills.

Scott said the case is about money.

“She stands to inherit a good deal of money that she doesn’t want me to get my hands on,” he said. “I didn’t marry her for money. I married her because I loved her. I just want what I would have gotten in a regular divorce.”

Scott said he’s known he was transgender since an early age. In high school he cross-dressed and dated girls. He jokes that he kept waiting for a penis to grow and was disappointed when his mother told him he needed to start wearing a shirt after he developed breasts.

In 1998, months before he married Robertson, Scott had his breasts and ovaries removed. At the time the couple had already been together for 10 years.

Scott also obtained a birth certificate from his native Iowa identifying him as male. The only transitional step Scott hasn’t undertaken is a phalloplasty — an expensive, imperfect and dangerous procedure for female-to-male transsexuals.

Scott, who sports a full beard and mustache thanks to hormone therapy, said no one except his doctor’s office knew he was transgender during the time the couple lived together in Cedar Hill. He acknowledges this will change now, but says the case is about more than just him now.

“Most importantly if it keep kids from killing themselves because they’re different — that doesn’t need to be,” Scott said.

“I’m fully aware that after this case comes out in the press, I could be threatened, but at the moment it seems minor compared to what my wife has done to me,” he added. “It’s about equality for everyone.”

This article appeared in the Dallas Voice print edition December 2, 2011.

—  Kevin Thomas

Arlington man sentenced to 14 months for hate crime arson at mosque

Henry Clay Glaspell

U.S. District Judge Terry R. Means this week sentenced Henry Clay Glaspell, 34, of Arlington, to 14 months in prison after Gaspell pleaded guilty to a hate crime charge in connection with an arson fire at the children’s playground at the Dar El-Eman Islamic Education Center in Arlington in July 2010, according to this report from the Fort Worth Star-Telegram.

Means ordered Glaspell, who has been free on bond, to surrender to the Bureau of Prisons on Nov. 21.

Glaspell also admitted that he had stolen and damaged some of the mosque’s property, that he had thrown used cat litter at the mosque’s front door and that he had shouted racial and ethnic slurs at people at the mosque on several occasions. Glaspell said his actions were motivated by hatred for people of Arabic or Middle Eastern descent.

Texas legislators passed the James Byrd Jr. Hate Crimes Act, which allows enhanced penalties to be assessed to those convicted of hate crimes. But while hate crimes are frequently reported and labeled as such by law enforcement, prosecutors rarely take hate crimes charges to court for fear that it would be too hard to prove a perpetrator’s bias-based intent to a jury.

—  admin

Oetken sidesteps questions on brief in sodomy case

Paul Oetken

Gay court nominee says arguments in brief he wrote for Lawrence v. Texas expressed his client’s views, not necessarily his

LISA KEEN  |  Keen News Service
lisakeen@mac.com

When openly gay federal district court nominee Paul Oetken went before the U.S. Senate Judiciary Committee in March, Sen. Charles Grassley was the only Republican who showed up.

 

He introduced Oetken, who was born in his home state of Iowa, but had no questions.

But not all questioning takes place in front of cameras. Some takes place on paper, and that’s where Grassley grilled Oetken over his positions on gay-related issues, and Oetken responded in a way that might make some LGBT activists cringe.

“Do you personally believe that government classifications based on sexual orientation deserve a heightened level of scrutiny?” asked Grassley, in one of 17 questions to Oetken.
Grassley’s question concerned a brief Oetken wrote for the National Gay and Lesbian Bar Association and submitted to the U.S. Supreme Court in support of overturning laws prohibiting same-sex sexual relations.

The case was Lawrence v. Texas and, in 2003, a majority of the Supreme Court did overturn such laws. Oetken’s brief argued that the courts should use the strictest form of scrutiny when examining laws that treat gay people differently.

In responding to Grassley, Oetken put some distance between himself and the brief, saying, “I have not expressed a personal view on this subject. The arguments in the amicus brief that I co-authored in Lawrence v. Texas were arguments made on behalf of clients.”

“Although I believed that there was a good faith basis in Supreme Court precedent for making those arguments [in the brief], they do not necessarily reflect how I would approach these issues as a district judge,” wrote Oetken.

Oetken also put some distance between his brief and the Supreme Court’s decision, noting that, “The Supreme Court in Lawrence v. Texas did not decide that case under the Equal Protection Clause, but rather under the Due Process Clause, and it therefore did not decide the issues addressed in my amicus brief in that case.”

Oetken also said, “If confirmed as a district judge, I would apply the applicable precedents of the Supreme Court and the Second Circuit.”

Republican Sen. Jeff Sessions also submitted written questions about Oetken’s brief in Lawrence. Sessions noted that Oetken had argued that the issue of physician-assisted suicide should be decided by each state legislature.

He quoted Oetken saying, the issue of physician-assisted suicide “should stay where it belongs, in the legislatures” because the states’ “varied approaches to the issue may, over time, aid in forming a national consensus, making it possible for Congress to resolve it through national legislation.”

But Sessions was interested in how Oetken could argue, in 2002, to leave the suicide issue to the states and then argue, in 2003, “that Texas’ anti-sodomy law was something that warranted federal intervention. …”

Oetken, again, noted that the Lawrence brief included “arguments made on behalf of clients.”

His argument to leave the suicide issue to the states, he said, was appropriate given that there was no federal legislation addressing it.

Oetken’s nomination was reported out of committee on April 7 and is awaiting a vote by the full Senate.

© 2011 Keen News Service. All rights reserved.

—  John Wright

Judge to rule this week in Nikki Araguz case

Nikki Araguz

Transgender widow vows appeal if she loses case

JUAN A. LOZANO  |  Associated Press

WHARTON, Texas — The transgender widow of a Texas firefighter will likely learn next week whether his family’s request to nullify their marriage and strip her of any death benefits will be granted, a judge said Friday.

State District Judge Randy Clapp made the announcement after hearing arguments in a lawsuit filed by the family of firefighter Thomas Araguz III, who was killed while battling a blaze last year. The suit argues that his widow shouldn’t get any benefits because she was born a man and Texas doesn’t recognize same-sex marriage.

The widow, Nikki Araguz, said she had done everything medically and legally possible to show that she is female and was legally married under Texas law. She believes that she’s entitled to widow’s benefits.

“I believe the judge is going to rule in my favor,” Araguz said after the court hearing.

The lawsuit seeks control over death benefits and assets totaling more than $600,000, which the firefighter’s family wants to go to his two sons from a previous marriage. Voiding the marriage would prevent Nikki Araguz from receiving any insurance or death benefits or property the couple had together.

Thomas Araguz died while fighting a fire at an egg farm near Wharton, about 60 miles southwest of Houston, in July 2010. He was 30.

His mother, Simona Longoria, filed a lawsuit asking that her son’s marriage be voided. She and her family have said he learned of his wife’s gender history just prior to his death, and after he found out, he moved out of their home and planned to end the marriage.

But Nikki Araguz, 35, has insisted that her husband was aware she was born a man and that he fully supported her through the surgical process to become a woman. She underwent surgery two months after they were married in 2008.

Longoria’s attorney, Chad Ellis, argued that Texas law — specifically a 1999 appeals court ruling that stated chromosomes, not genitals, determine gender — supports his client’s efforts to void the marriage.

The ruling upheld a lower court’s decision that threw out a wrongful death lawsuit filed by a San Antonio woman, Christie Lee Cavazos Littleton, after her husband’s death. The court said that although Littleton had undergone a sex-change operation, she was actually a man, based on her original birth certificate, and therefore her marriage and wrongful death claim were invalid.

Ellis presented medical and school records that he said showed Nikki Araguz was born without female reproductive organs and that she presented herself as a male while growing up and going to school. He also said her birth certificate at the time of her marriage indicated she was a man.

“By law, two males cannot be married in this state,” Ellis told the judge.

Nikki Araguz, who was born in California, did not change her birth certificate to reflect she had become a female until after her husband’s death, said Edward Burwell, one of the attorneys for Thomas Araguz’s ex-wife, Heather Delgado, the mother of his two children.

But one of Nikki Araguz’s attorneys, Darrell Steidley, said that when his client got her marriage license, she presented the necessary legal documents to show she was a female. He also noted changes made in 2009 to the Texas Family Code that allowed people to present numerous alternatives to a birth certificate as the proof of identity needed to get a marriage license. That was an example, he argued, of the state trying to move away from the 1999 appeals court ruling.

The changes in 2009 allowed transgendered people to use proof of their sex change to get a marriage license. The Texas Legislature is currently considering a bill that would prohibit county and district clerks from using a court order recognizing a sex change as documentation to get married.

After the hearing, the firefighter’s family and attorneys for his ex-wife criticized plans by Nikki Araguz to star in a reality television dating show and implied she was only interested in money and fame that the case would bring her.

“That is absurd,” Nikki Araguz said in response. “I’m after my civil equality and the rights that I deserve as the wife of a fallen firefighter.”

If the judge rules against the firefighter’s family in their motion for a summary judgment, the case would then proceed to trial. Araguz said if the judge rules against her, she would appeal, all the way to the U.S. Supreme Court if necessary.

—  John Wright

Judge’s gay relationship at issue in Prop 8 case

Judge Vaughn Walker

LISA LEFF  |  Associated Press

SAN FRANCISCO — Rumors swirled that the federal judge who had struck down California’s same-sex marriage ban last summer was gay, but the lawyers charged with defending the measure remained silent on the subject. Their preferred strategy for getting the ruling overturned on appeal was to focus on the law, not a judge’s personal life, they said.

Eight months later, Proposition 8′s proponents and their attorneys have taken a new position. They filed a motion Monday seeking to vacate Chief U.S. District Judge Vaughn Walker’s historic ruling, a move they said was prompted by the now-retired jurist’s recent disclosure that he is in a long-term relationship with another man.

Lawyers for the ban’s backers argue that the judge’s relationship status, not his sexual orientation, gave him too much in common with the couples who successfully sued to overturn the ban in his court. The judge should have recused himself or at least revealed the relationship to avoid a real or perceived conflict of interest, the lawyers say.

“If at any time while this case was pending before him, Chief Judge Walker and his partner determined that they desired, or might desire, to marry, Chief Judge Walker plainly had an interest that could be substantially affected by the outcome of the proceeding,” wrote attorneys for the coalition of religious and conservative groups that put Proposition 8 on the November 2008 ballot.

They are now asking the judge who inherited the case when Walker retired at the end of February to toss out Walker’s August decision. The 9th U.S. Circuit Court of Appeals already is reviewing its legal merits at the request of the voter-approved measure’s sponsors.

Walker has said that he did not consider his sexual orientation to be any more a reason for recusal than another judge’s race or gender normally would be. A spokeswoman said Monday that the judge wouldn’t comment on the motion.

American Foundation for Equal Rights President Chad Griffin, whose group has funded the legal effort to strike down Proposition 8, scoffed at the notion that the judge’s personal life could imperil his ruling.

Griffin noted that the Obama administration recently had decided to stop defending the federal law that bans recognition of same-sex marriage after determining that it, too, was unconstitutional.

“This motion is another in a string of desperate and absurd motions by the proponents of Proposition 8, who refuse to accept that the freedom to marry is a constitutional right,” he said.

Walker, a 67-year-old Republican appointee, declared Proposition 8 to be an unconstitutional violation of gay Californians’ civil rights. He also ordered the state to stop enforcing the gay marriage ban, but the 9th Circuit put his order on hold while the case is on appeal.

Speculation about Walker’s sexual orientation circulated during the 13-day trial that preceded his decision and after he handed down his ruling. Lawyers for Protect Marriage, the coalition that sponsored Proposition 8, however, had purposely refrained from raising his sexual orientation as a legal issue until Monday.

But they decided it gave them grounds for getting Walker’s decision struck down after the judge disclosed his 10-year relationship this month to a group of courthouse reporters, said Protect Marriage general counsel Andy Pugno.

“We deeply regret the necessity of this motion. But if the courts are to require others to follow the law, the courts themselves must do so as well,” Pugno added.

Indiana University Law School professor Charles Geyh, an expert on judicial ethics, said that without more evidence that Walker stood to personally benefit if same-sex marriages were legal in California, he found it difficult to imagine that the particulars of the judge’s same-sex relationship provided gay marriage opponents with an avenue for reversing his ruling.

“It really implies it would be fine if he were essentially surfing at bars and had a new partner every night because he wouldn’t want to be married,” he said. “I don’t see that as advancing their cause.”

Proposition 8′s sponsors also have been trying to get the federal appeals court to order Walker to return his personal video copy of the trial. The judge has been using a three-minute segment of one of their witnesses being cross-examined for a lecture he’s been giving on cameras in the courtroom.

—  John Wright

Gay divorce case appealed to TX Supreme Court

‘J.B.’

More than two years after he filed an uncontested petition for divorce, attorneys for the gay Dallas resident known as “J.B.” have appealed his case to the Texas Supreme Court.

J.B. and his husband, H.B., were married in 2006 in Massachusetts before moving to Dallas. After they filed for a divorce in Dallas County in January 2009, Democratic District Judge Tena Callahan ruled in October 2009 that she had jurisdiction to hear the case, calling Texas’ bans on same-sex marriage unconstitutional.

Republican Texas Attorney General Greg Abbott promptly intervened and appealed to the 5th District court, which overturned Callahan’s decision.

On Feb. 17, attorneys at Akin Gump Strauss Hauer and Feld, which represents J.B., filed a Petition for Review of the 5th District’s ruling by the Texas Supreme Court.

“This Court should grant review because this case involves questions of great importance to Texas state law, which likely will recur with increasing frequency until this Court provides guidance,” the attorneys wrote in their Petition for Review. “Over 28% of the U.S. population lives in a jurisdiction where same-sex marriage or its equivalent is permitted. Texas is one of the nation’s fastest growing states—attracting thousands upon thousands of migrants each year, including couples from those states that permit same-sex marriage. Thus, there is an increasing likelihood that same-sex couples legally married in another state will move to Texas and eventually seek divorce in Texas. Whether Family Code section 6.204 prevents these same-sex couples who were legally married in another state from obtaining a divorce in Texas, and whether this violates the U.S. Constitution, are questions important to the state’s jurisprudence, and should be, but have not yet been, resolved by this Court.”

To read the full petition for review, go here.

—  John Wright

We’re used to state-by-state laws on same-sex marriage, but what about county by county?

Conservative House Republicans in Iowa have introduced a bill that would prohibit county recorders form issuing marriage licenses — and block the state Supreme Court from reviewing the issue.

The apparent goal of the legislation is to prevent additional same-sex marriages in Iowa before a constitutional amendment can be passed to ban them. The Iowa House has already approved a resolution that would launch such an amendment.

But even the state’s attorney general says the latest proposal is unconstitutional because it would block review by the state Supreme Court:

That possible outcome: Iowans could challenge a recorder’s decision in trial courts, but those decisions could not be appealed to the Iowa Supreme Court.

That would make the lower court ruling final and would mean Iowa could become a patchwork of counties in which some recognized the law and others did not.

“I think the result is that you would have a hodgepodge of rulings across the state,” Bartrum said. “It would depend on whatever the local district judge thought because there would be no uniform appeal.”

While this legislation would clearly be a bad thing for Iowa, where same-sex marriage is already legal, we wouldn’t mind seeing a different version of it in Texas. Since our state leaders claim they’re all about local control, why not let the gays marry in Dallas County?

—  John Wright