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

Witt, DOD reach settlement in DADT case

Major Margaret Witt

DOD agrees to allow major to retire with full benefits; DOJ won’t appeal her 9th Circuit victory

LISA KEEN | Keen News Service
lisakeen@me.com

The ACLU of Washington State announced Tuesday, May 10, that Air Force Reserve nurse Margaret Witt has reached a final settlement with the Department of Defense in her highly publicized litigation to avoid discharge under “don’t ask, don’t tell.”

According to an ACLU press release, the DOD has agreed to allow Witt to retire with full benefits and the Department of Justice will drop its appeal of a federal district court ruling in her favor.

Last September, Judge Ronald Leighton of the U.S. District Court for Western Washington ruled that Witt’s sexual orientation did not negatively impact her unit’s morale or unit cohesion and that her discharge under DADT violated her Fifth Amendment right to due process.

“I am proud to have played a role in bringing about the repeal of ‘don’t ask, don’t tell,’” Witt said in a statement released by the ACLU. “I am so pleased that the tens of thousands of lesbians and gays who have served their country honorably will be able to serve openly.”

The Witt v. U.S. case has been a high-profile one, and the subject of debate on the floor of the Senate and in the confirmation hearing of the U.S. Supreme Court’s newest member, Elena Kagan. It was just one of several cases that applied pressure to Congress to repeal DADT before a federal court ordered it to do so immediately.

After several failed attempts, Congress did pass legislation to repeal DADT and President Obama signed it last December. DOD officials said earlier this year they expect to satisfy a necessary certification requirement — certifying that repeal can take place without affecting military readiness — about mid-summer this year.

Servicemembers Legal Defense Network, which has been working to pass repeal, congratulated Witt and the ACLU on their “stunning victory.”

“Today’s events underscore once again the unjust nature of this discriminatory chapter in American history,” SLDN Executive Director Aubrey Sarvis said in a written statement. “Her case established a new rule of law in the Ninth Circuit, and her voice and story were pivotal in building support for the repeal of ‘don’t ask, don’t tell.’ This is not just a victory for Major Witt, it’s a victory for justice and for service members everywhere.”

Witt, 46, joined the Air Force in 1987 and moved quickly up the ranks, becoming a major in 1999, working with a unit that provided airborne intensive care units for wounded military personnel.

She received a number of commendations and even appeared on a recruitment poster.

Witt was discharged in 2006 for having acknowledged she had a relationship with a woman in Tacoma where Witt was based.

In the initial round of her lawsuit, she won — at the 9th Circuit Court of Appeals level— the right to a trial on the merits of her individual discharge under DADT.

During Witt’s trial, DOJ attorneys put on witnesses to discuss Witt’s relationship with a married civilian woman and argued that it was not just Witt’s sexual orientation but also her adulterous behavior to blame for her discharge. The government also noted that Witt had told at least two colleagues she was gay, thus putting them in an awkward position of either keeping silent to protect her or informing superior officers of Witt’s being in violation of the DADT law.

© 2011 Keen News Service. All rights reserved.

—  John Wright

Bullying victim’s family sues Joshua schools

Jon Carmichael

The family of 13-year-old Jon Carmichael filed suit yesterday in federal court against the Joshua Independent School District, claiming that school officials ignored and even covered up the months of cruel harassment and bullying that drive Jon to suicide in March of last year.

The lawsuit was filed Monday, March 28, in federal district court in Dallas, exactly one year after Jon hung himself in his family’s barn. Joshua is located just outside of Cleburne, south of Fort Worth in Johnson County.

Reports at the time of his death indicated that Jon was bullied because he was smaller than his classmates at Loflin Middle School.

A report in today’s Fort Worth Star-Telegram says that among the bullying Jon endured was being thrown into a trash dumpster and having his head held down in a toilet while it was flushed. Just before Jon hanged himself, the lawsuit alleges, he was stripped naked and put in a trash can. This time the attack was videotaped and posted on YouTube. It was removed at the direction of a school staff member, but that staff member did not report the incident, the lawsuit says.

The lawsuit also claims that on the day Jon died, he told a girl he was going to commit suicide and she told him to go ahead because no one cared if he lived or died.

School superintendent Ray Dane said he has not seen the lawsuit and had no comment.

Jon’s mother and sister were among those who went to Austin on Tuesday, March 22, to testify in favor of comprehensive anti-bullying legislation being considered by Texas lawmakers.

—  admin

Calif. Supreme Court agrees to rule on whether Prop 8 supporters have standing to appeal

LISA KEEN | Keen News Service

The road to marriage equality in California just got a little longer.

The California Supreme Court said today it would make ruling on whether Yes on 8 proponents have authority, under California law, to appeal a federal court ruling that the initiative is unconstitutional.

The announcement, at 4:20 p.m. Central time today, means the California court will soon hear arguments in the landmark Perry v. Schwarzenegger case. But the question will be a procedural one only: whether there is any authority under California law that would provide Yes on 8 proponents with standing to defend Proposition 8 in a federal appeals court.

The court’s brief announcement said it would hear arguments on an expedited schedule and asked that the first briefs be due March 14 and that oral argument take place as early as September.

Once the California Supreme Court decides whether state law provides any right to Yes on 8 to represent voters on appeal, the 9th Circuit U.S. Court of Appeals panel will then make its final determination as to whether Yes on 8 has standing to appeal. And, if the 9th Circuit says Yes on 8 does have standing, it will also rule on the constitutionality of Proposition 8.

The question before the California Supreme Court was whether there is any authority under California law that would enable Yes on 8 proponents to represent voters who approved Proposition 8. The answer mattered to the 9th Circuit Court of Appeals panel. Without any authority under state law, the appeals panel suggested, the group might not have any “standing” at all to appeal the decision. If a party has “standing,” they are sufficiently affected by a conflict to justify having a court hear their lawsuit or appeal on the matter.

When the legal team of Ted Olson and David Boies filed a legal challenge to California’s Proposition 8 in federal district court, the state, under Gov. Arnold Schwarzenegger and Attorney General Jerry Brown, had standing to defend the law. But neither provided a defense and, instead, the Yes on 8 coalition that campaigned for the initiative did so.

When the district court found Proposition 8 unconstitutional, the state officers said they would not appeal the decision, so Yes on 8 once again sought to defend the law, this time in the federal appeals court. But both Schwarzenegger and Brown urged the 9th Circuit not to accept the appeal, saying the best thing for California was to abide by the district court ruling.

So, when the 9th Circuit panel heard oral arguments on the appeal last December, one of the first and most pressing issues it had to wrestle with was whether Yes on 8 still had “standing” to bring the appeal when the state government had decided it wanted to honor the district court decision.

What bothered the panel was their belief that the state officers — Schwarzenegger and Brown — were acquiring veto power by simply refusing to defend a voter-approved law with which they disagreed.

The panel asked the California Supreme Court to say whether there might be some authority under state law that would provide Yes on 8 with standing to bring the appeal.

The legal team challenging Proposition 8, led by Ted Olson and David Boies, filed briefs with the California Supreme Court, saying the state court should not provide such a determination because the standing issue in a federal appeals court is essentially a matter of federal law.

© 2011 by Keen News Service. All rights reserved.

—  John Wright

Prop 8 case sent to Calif. Supreme Court

LGBT advocates frustrated over delay

Lisa Keen  |  Keen News Service

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

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

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

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

The announcement frustrated and disappointed many.

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

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

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

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

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

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

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

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

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

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

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

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

“If California does grant the official proponents of an initiative the authority to represent the State’s interest in defending a voter-approved initiative when public officials have declined to do so or to appeal a judgment invalidating the initiative,” states the order, “then Proponents would also have standing to appeal on behalf of the State.

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

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

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

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

NCLR’s Minter agreed.

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

The full text of the order is below.

© 2011 Keen News Service. All rights reserved.

CA9Doc 292

—  John Wright

Despite court order, the military is still enforcing ‘don’t ask don’t tell’ — at least in Texas

Omar Lopez, who was kicked out of the Navy in 2006 for “homosexual admission,” tried to re-enlist on Wednesday but was turned away at a recruiting office in Austin.

Sometime Thursday afternoon, the U.S. Department of Justice reportedly will request an emergency stay of Tuesday’s federal district court ruling ordering the military to halt enforcement of “don’t ask don’t tell.” And in the meantime, it would appear as though the Department of Defense is openly defying the ruling, perhaps putting the federal government in contempt of court. The New York Times reported Thursday:

But with the ultimate fate of the “don’t ask, don’t tell” rule still unclear, some celebrations are being delayed.

With a briefcase full of commendations under his arm, Omar Lopez walked into an Austin, Tex., recruiting office Wednesday. Mr. Lopez, 29, had served nearly five years in the Navy. He was honorably discharged in 2006 for “homosexual admission,” according to documents he carried. He wanted to re-enlist.

But recruiters turned him away hastily, saying they had no knowledge of any injunction or any change in military policy.

“I like the civilian world, but I miss it,” Mr. Lopez said of the military, as he arrived with a worker for Get Equal, a gay rights advocacy group. “I feel lost without it.”

The NYT report prompted a letter from the attorney for Log Cabin Republicans, which brought the lawsuit, to the Department of Justice:

“Please let us know immediately what steps the government has taken to communicate the terms and requirements of the Court’s order to military personnel, including field commanders and military recruiting offices, who are in a position to violate the requirements of the injunction under the cover of ignorance of its terms or existence,” wrote LCR attorney Dan Woods.

—  John Wright