What now with Prop 8?

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

DAVID TAFFET  |  Staff Writer  taffet@dallasvoice.com

Chris Stoll
Chris Stoll

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

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

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

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

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

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

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

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

Upton said he liked the schedule.

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

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

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

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

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

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

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

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

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

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

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

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

Jenny Pizer
Jenny Pizer

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

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

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

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

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

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

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

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

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

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

“The stay keeps things simpler,” she said.

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

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

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

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

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

—  Michael Stephens

Dallasite creates local Marriage Equality group

Couple starts Dallas chapter of national group that promotes equality for same-sex couples

Tammye Nash  |  Senior Editor
nash@dallasvoice.com

 Eric Crawford, right, and his fiance Marcus Watson
ENGAGED IN CHANGE | Eric Crawford, right, and his fiance Marcus Watson, pictured here in Central Park, first heard of Marriage Equality USA during a June trip to New York City.

Last week in California, federal District Judge Vaughn Walker issued a ruling striking down the state’s anti-gay-marriage constitutional amendment, known as Proposition 8.

Earlier this year, legislators in Mexico City passed a law legalizing same-sex marriage, and last week the country’s Supreme Court issued a decision declaring the law constitutionally valid. Then this week, that same court ruled that same-sex marriages performed in Mexico City must be legally recognized throughout the country.

Portugal legalized same-sex marriage in May, and Argentina followed suit in July. And this week, Costa Rica’s Supreme Court ruled that an initiative on the ballot there for December, on whether to ban same-sex civil unions, is unconstitutional and cannot go forward.

The fight for marriage equality continues to advance around the globe.
But not in Texas.

It’s not that LGBT Texans aren’t trying. And Dallasite Eric Crawford said this week that he is joining the battle full force by starting a Dallas chapter of the national organization Marriage Equality USA.

“Right now, we are just having an organizational meeting,” Crawford said. But he has big plans for the future.

“We want to plan events throughout the year, things like maybe a Valentine’s Day dance in February and other things to focus attention on marriage equality,” he said. “There are a variety of efforts we could take on, letter-writing campaigns, attending events like the Prop 8 celebration here.

“I will get ideas from the people who participate, see what they are up for and how far they want to take it,” he added. “I know Marriage Equality USA needs funds to help fight the appeal on Prop 8 in California. Maybe we could help them raise the money they need.”

Crawford explained that he and his partner, Marcus Watson, first heard about the organization when they went to New York in June for the gay Pride celebration there.

Marriage was already on their minds since they got engaged the day before the left on the trip and are now planning a wedding for next July.

“We heard about Marriage Equality New York and what they are doing, and it really got me excited and engaged,” Crawford said. “So I started checking around in Dallas and I didn’t find any groups here specifically pertaining to marriage equality. Then I went online and found Marriage Equality USA.

“That’s when I really just got tired of being complacent and waiting on other people to do something, and I decided to start up a group here.”

His first step was to go to the MeetUp.com website and form a meet-up group for people in the Dallas area interested in promoting marriage equality to “gauge interest” in a marriage equality organization here. Crawford said he was surprised by the large number of straight allies who responded.

“I was really impressed by that,” he said. “It’s not just the gay community that cares about this.”

Although Dallas County has turned blue in recent elections, most of Texas remains decidedly red when it comes to political affiliations. And the Republican Party has, for the most part, stood firmly in opposition to legalizing same-sex marriage, especially in Texas where the state GOP platform even includes platforms calling for the return of sodomy laws and more.

But Crawford said he isn’t willing to concede the state to anti-gay forces.

“I think a lot of people in Texas have become complacent. They think, ‘Hey. It’s Texas. We can’t really do anything here to make a difference,’” he said.

“But the fact is, if it weren’t for two men from Houston who were willing to fight all the way to the Supreme Court, we’d still have sodomy laws on the books in this country. So that shows that change can get started in Texas, that we can accomplish things in Texas.

“And the first thing I think we need to do is make sure that our legislators in Austin know there is a huge group here in Texas that are for marriage equality. That is something we can do.”

The organizational meeting for Marriage Equality Dallas will be held Tuesday, Aug. 17, at 7:30 p.m. in the Park Room at Park Towers, 3310 Fairmont St. The meeting is open to all interested persons.

This article appeared in the Dallas Voice print edition August 13, 2010.

—  Kevin Thomas

Politico polling readers on the Prop 8 ruling, and the haters are ahead by 16 percentage points

Back in 2008, the state of California let haters put our civil rights to a popular vote. We lost, and the California Constitution was amended to snatch away the rights of same-sex couples to wed.

On Wednesday, federal District Judge Vaughn Walker issued his ruling in a case challenging that amendment — Proposition 8 — and this time , we won. Judge Walker said the majority doesn’t get to take away our rights just because they don’t like us.

Now the public is voting again, this time on Politico.com, in a poll: “What’s your reaction to the decision that reversed California’s ban on gay marriage?” And guess what — we’re losing. The votes so far are “Like. Hurray for equal rights,” 40 percent; “Dislike. How dare the courts reverse the will of the voters?” 56 percent; and “I’m not sure,” 2 percent.

If you want to have your say, go to Politico.com, scroll down to the “Politico” on the lower right side of the page, and vote.

UPDATE: The final result was 57 percent to 41 percent.

—  admin