Prop 8 supporters still want judge disqualified

Lawyers file brief claiming Vaughn Walker’s ruling striking down gay marriage ban should be invalidated because he is gay and in a relationship with a man

Walker.Vaughn

JUDGING THE JUDGE | In this July 8, 2009 file photo, Judge Vaughn Walker is seen in his chambers at the Phillip Burton Federal Building in San Francisco, Calif. Lawyers for the sponsors of California’s voter-approved same-sex marriage ban have filed briefs with the appeals court asking that Walker’s ruling striking down Prop 8 be invalidated because he is gay. (San Francisco Chronicle, Paul Chinn/Associated Press)

LISA LEFF  |  Associated Press
editor@dallasvoice.com

SAN FRANCISCO — The sponsors of California’s voter-approved same-sex marriage ban have asked a federal court to invalidate the ruling of the federal judge who struck it down, saying the judge should be disqualified because he did not divulge he was in a long-term relationship with another man.

Lawyers for the Proposition 8’s backers filed their open brief on the issue late Monday, Oct. 3, with the 9th U.S. Circuit Court of Appeals in San Francisco. They claim that another federal judge erred when he concluded U.S. Chief Judge Vaughn Walker’s relationship status was irrelevant to Walker’s ability to fairly preside over the trial on the measure’s constitutionality.

In their brief, they argue that Walker’s impartiality can be questioned because he is “similarly situated” to the plaintiffs who sued to overturn Proposition 8, two same-sex couples in established relationships. They also said that while Walker has not indicated if he and his partner wish to marry, research presented as evidence in the trial found that two-thirds of unmarried same-sex couples would tie the knot if they could.

“Given that Judge Walker was in a long-term, same-sex relationship throughout this case (and
for many years before the case commenced), he was, in Plaintiffs’ own words, ‘similarly situated to (Plaintiffs) for purposes of marriage,’” the lawyers wrote. “And it is entirely possible — indeed, it is quite likely, according to Plaintiffs themselves — that Judge Walker had an interest in marrying his partner and therefore stood in precisely the same shoes as the Plaintiffs before him.”

Walker’s successor, Chief Judge James Ware, rejected similar arguments in late August, after the coalition of religious conservative groups that qualified Proposition 8 for the November 2008 ballot made the first attempt in the nation to disqualify a sitting judge based on sexual orientation.

Ware said the presumption that Walker could not be unbiased was “as warrantless as the presumption that a female judge is incapable of being impartial in a case in which women seek legal relief.”

In an apparent response, the coalition’s attorneys wrote that they were not suggesting that gay or lesbian judges could never preside over cases involving gay rights questions.

“We know of no reason to believe, for example, that Judge Walker would have any personal interest in the outcome of litigation over, say, the constitutionality of the military’s ‘don’t ask, don’t tell’ policy,” they said. “Nor would there be any issue with a gay or lesbian judge hearing this case so long as a reasonable person, knowing all of the relevant facts and circumstances, would not have reason to believe that the judge has a current personal interest in marrying.”

The 9th Circuit already is reviewing whether Walker properly concluded the ban violates the rights of gay Californians and if Proposition 8’s sponsors were eligible to appeal his ruling once the state’s attorney general and governor declined to challenge it. A decision could come down at any time.

This article appeared in the Dallas Voice print edition October 7, 2011.

—  Kevin Thomas

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

History isn’t on Leppert’s side

Mayor Henry Ervay is buried in Oakland Cemetery near Fair Park.

The following Dallas mayors have run for governor or senator and won:

• ______________

That’s right. None.

Mayor Ron Kirk (1995-2002) is actually the only Dallas mayor ever to receive his party’s nomination for Senate, but he lost the general election. None has ever run for governor. However, a few Dallas mayors have gone on to serve in other offices.

John McClannahan Crockett, Dallas’ second mayor who served from 1857-58, became lieutenant governor from 1861-63 after Texas joined the Confederacy. After the Civil War, he served as mayor again in 1866-67.

But that’s the highest office a former Dallas mayor has ever held — lieutenant governor of a seceded state, something Mayor Tom Leppert could still achieve if Gov. Rick Perry gets his way.

Mayor John William Lane (1866) became a state representative and then a state senator.

Mayor Henry Schley Ervay (1870-72) went on to serve as a city alderman (councilman) from 1873-82. By the way, the reason one of the city’s main streets is named after him isn’t his 12 years of service. He became a Dallas hero because after becoming mayor, Ervay was considered not loyal enough to the Union (even though the guy was from New York) and thrown in jail in 1870 by the military governor. The state supreme court ordered Ervay released and he was allowed to serve.

Mayor Earle Cabell (1961-64) was later elected to the U.S. House of Representatives. The only other mayor to run for the House was Mayor Wes Wise (1971-76) but he lost that race. Mayor Steve Bartlett was already a congressman when he became mayor (1991-95).

Houston’s mayors have fared even worse. Mayor Joseph Chappell Hutcheson Jr. (1917-18) became a federal judge. Mayor John Browne (1892-96) later was elected to the U.S. House of Representatives. Bill White (2004-10) was the first to run for governor and, like Kirk who ran for Senate, he lost. In fact, none of Texas’ governors or senators has ever been a mayor of any Texas city.

So if Mayor Tom Leppert resigned to run for Senate, good luck. History’s not on his side.

—  David Taffet

The Nooner: Leppert unlikely to run; 1st gay museum opens; R.I. marriage fight heats up

Mayor Tom Leppert appears in the Alan Ross Texas Freedom Parade in 2007.

Your lunchtime quickie from Instant Tea:

• It’s “all but certain” that Dallas Mayor Tom Leppert won’t seek re-election, according to The Dallas Morning News, and Councilwoman Angela Hunt says she’s considering a run.

• Westboro Baptist Church says it has decided not to picket 9-year-old Tucson shooting victim’s funeral after all, but it will picket that of federal judge killed in attack.

• First LGBT history museum opens in San Francisco.

• Marriage fight heats up in Rhode Island.

• Jewish groups condemn Sarah Palin‘s use of “blood libel.”

—  John Wright

Texas legislator seeks ban on Sharia law

State Rep. Leo Berman, R-Tyler

This just in from the Twitters: Looks like right-wing State Rep. Leo Berman, R-Tyler, has filed a proposed constitutional amendment that would bar state courts from enforcing, considering or applying any religious or cultural law. Berman appears to be seeking something similar to the constitutional amendment passed by Oklahoma voters last year outlawing Sharia law, or Islamic law. A federal judge has blocked enforcement of the Oklahoma amendment — which passed overwhelmingly — while she determines whether it’s in line with the U.S. Constitution. Of course, the irony here is that if religious-based law were banned in Texas or Oklahoma, you’d have to throw out half the books, including the bans on same-sex marriage. People like Berman don’t want a ban on religious law; they want a ban on non-fundamentalist Christian law.

—  John Wright

Ban on Sharia law in Okla. ruled unconstitutional

Judge Vicki Miles-LaGrange

A federal judge stopped short of declaring Oklahoma voters a bunch of dumbasses, but she did rule that their attempt to outlaw Sharia law is unconstitutional, according to the Daily Oklahoman.

U.S. District Judge Vicki Miles-LaGrange issued a 15-page ruling throwing out the state constitutional amendment. On Nov. 2, Oklahoma voters approved the amendment that would have prohibited state courts from considering or using Sharia law despite the fact that state courts had never used – nor had plans to use — Sharia law. The constitutional amendment passed with more than 70 percent of the vote.

Sharia is Islamic law based on the Quran and the teachings of Muhammed. It includes the Ten Commandments — so the amendment effectively made the Ten Commandments illegal in Oklahoma.

Miles-LaGrange wrote in her opinion, “This order addresses issues that go to the very foundation of our country, our Constitution, and particularly, the Bill of Rights.”

Supporters of the law said it was a defense against such practices as marital rape. However, state laws already make such practices  illegal.

Muneer Awad, the head of the Council on American-Islamic Relations in Oklahoma, filed suit against the amendment claiming it violated his freedom of religion.

The judge ruled that he had standing in the case and that he would have suffered injury to his First Amendment rights. Awad lives in Oklahoma, is a Muslim and “the amendment conveys an official government message of disapproval and hostility toward his religious beliefs, that sends a clear message he is an outsider, not a full member of the political community, thereby chilling his access to the government and forcing him to curtail his political and religious activities.”

Republican State Rep. Rex Duncan was the author of the amendment. He said it wasn’t intended to attack Muslims but rather was a “pre-emptive strike.”

Aren’t pre-emptive strikes usually attacks?

And wasn’t the only terrorist attack that has taken place in Oklahoma — the Oklahoma City bombing of the Murrah Federal Building — carried out by a couple of Christian guys?

—  David Taffet

BREAKING: Government to request stay of injunction halting enfocement of DADT

The U.S. Department of Justice was expected to ask a federal judge on Thursday afternoon to allow the military to continue enforcing “don’t ask don’t tell” pending the government’s appeal of a September ruling declaring the policy unconstitutional.

U.S. District Court Judge Virginia Phillips issued an injunction Tuesday, Oct. 12 ordering the Department of Defense to halt enforcement of DADT worldwide. In September, Phillips ruled that DADT violates servicemembers’ constitutional rights to free speech and due process.

The DOJ plans to appeal Phillips’ ruling to the U.S. Court of Appeals for the Ninth Circuit, and on Thursday government lawyers were expected to request a stay of the injunction pending the appeal, according to The Advocate. The appeal must be filed within 60 days.

If Phillips doesn’t grant their request for a stay, DOJ attorneys likely will ask for an emergency stay from the appeals court.

—  John Wright

BREAKING: Judge orders military to halt enforcement of ‘don’t ask don’t tell’

A federal judge in California has issued an injunction halting enforcement of “don’t ask don’t tell.”

Judge Virginia Phillips on Tuesday ordered the U.S. military “immediately to suspend and discontinue any investigation, or discharge, separation, or other proceeding, that may have been commenced” under DADT.

Phillips previously ruled that DADT violates servicemembers’ rights to due process and free speech. However, she delayed issuing an injunction in the lawsuit brought by the Log Cabin Republicans.

The Department of Justice now has 60 days to appeal the decision but has not said whether it will do so. In the meantime, the DOJ could also seek a stay of the decision from the U.S. Circuit Court of Appeals for the Ninth Circuit. DOJ has no obligation to appeal the ruling and could simply allow it to stand.

“This order from Judge Phillips is another historic and courageous step in the right direction, a step that Congress has been noticeably slow in taking,” said Alexander Nicholson, executive director of Servicemembers United and the sole named veteran plaintiff in the case along with the Log Cabin Republicans. “While this is certainly news to be celebrated, we would also advise caution in advance of a potential stay from the Ninth Circuit. If the appellate court wishes to put itself on the right side of history, however, it will allow this sound and long-over due decision to remain in effect.”

Christian Berle, acting executive director of Log Cabin Republicans, said in the wake of Phillips’ initial ruling, the injunction was the “only reasonable solution.”

“These soldiers, sailors, airmen and marines sacrifice so much in defense of our nation and our Constitution,” Berle said. “It is imperative that their constitutional freedoms be protected as well. This decision is also a victory for all who support a strong national defense. No longer will our military be compelled to discharge servicemembers with valuable skills and experience because of an archaic policy mandating irrational discrimination. The United States is stronger because of this injunction, and Log Cabin Republicans is proud to have brought the case that made it possible.”

Dan Woods, one of the attorneys representing Log Cabin, said he was “extremely pleased” with the injunction.

“The order represents a complete and total victory for Log Cabin Republicans and reaffirms the constitutional rights of gays and lesbians in the military who are fighting and dying for our country,” Woods said.

Other statements on Tuesday’s order:

Aaron Tax, legal director, Servicemembers Legal Defense Network:

“We applaud Judge Phillips for putting an immediate stop to all investigations and discharges under this unconstitutional law. As explained by the judge, this order applies across the military. This order bars the Department of Defense from enforcing or applying the ‘Don’t Ask, Don’t Tell’ law against any person under its command. We have clients under investigation and facing discharge right now. We’ll be monitoring each case over the coming days. This order will likely be appealed by the Justice Department and brought to the U.S. Court of Appeals for the 9th Circuit where her decision may well be reversed. The law still has a chance of being repealed in the lame duck session of Congress. Service members must proceed safely and should not come out at this time. Anyone in the armed forces with questions or concerns should call our hotline.”

—  John Wright

Judge orders lesbian reinstated to Air Force

Ruling is 2nd this month declaring ‘don’t ask don’t tell’ unconstitutional

GENE JOHNSON  |  Associated Press

TACOMA, Wash. — A federal judge ruled Friday, Sept. 24 that a decorated flight nurse discharged from the Air Force for being gay should be given her job back as soon as possible in the latest legal setback to the military’s “don’t ask, don’t tell” policy.

The decision by U.S. District Judge Ronald Leighton came in a closely watched case as a tense debate has been playing out over the policy. Senate Republicans blocked an effort to lift the ban this week, but Leighton is now the second federal judge this month to deem the policy unconstitutional.

Maj. Margaret Witt was suspended in 2004 and subsequently discharged under the “don’t ask, don’t tell” policy after the Air Force learned she had been in a long-term relationship with a civilian woman. She sued to get her job back.

Leighton hailed her as a “central figure in a long-term, highly charged civil rights movement.” Tears streaked down Witt’s cheeks and she hugged her parents, her partner and supporters following the ruling.

“Today you have won a victory in that struggle, the depth and duration of which will be determined by other judicial officers and hopefully soon the political branches of government,” the judge told her, choking up as he recalled Witt’s dramatic testimony about her struggles.

The ruling was the second legal victory this month for opponents of “don’t ask, don’t tell,” and it throws the law into further disarray.

Barring an appeal, Witt will now be able to serve despite being openly gay, and a federal judge in California earlier this month ruled the law unconstitutional and is considering whether to immediately halt the ban. While such an injunction would prevent openly gay service members from being discharged going forward, it wouldn’t do anything for those who have already been dismissed.

Witt’s attorneys, led by the American Civil Liberties Union of Washington, say her case now provides a template for gays who have been previously discharged to seek reinstatement.

Gay rights advocates say that if the government must justify each firing under “don’t ask,” it will mean a slow death for the policy — even if an outright repeal isn’t endorsed by Congress or the courts.

The 1993 law prohibits the military from asking about the sexual orientation of service members, but allows the discharge of those who acknowledge being gay or are discovered engaging in homosexual activity.

The Justice Department did not immediately comment on the ruling, but James Lobsenz, Witt’s attorney, said he expected an appeal.

In 2006, Leighton rejected Witt’s claims that the Air Force violated her rights, following precedent that the military’s policy on gays is constitutional. An appeals court panel overruled him two years later, holding that in light of a Supreme Court ruling striking down a Texas ban on sodomy, “don’t ask, don’t tell” intrudes on the rights of gay service members. For the government to discharge gays it must prove that their firings further military goals, the panel said.

Leighton determined after a six-day trial that Witt’s discharge advanced no legitimate military interest. To the contrary, her dismissal hurt morale in her unit and weakened the squadron’s ability to carry out its mission, he ruled.

“There is no evidence that wounded troops care about the sexual orientation of the flight nurse or medical technician tending to their wounds,” Leighton ruled.

Leighton became emotional as he recalled Witt’s testimony about the support she has received from her parents since she came out to them on the eve of filing her lawsuit.

“The best thing to come out of all this tumult is still that love and support,” he said.

A crowd of spectators remained quiet until the judge left the courtroom, when it erupted in cheers.

“I’m just so thrilled I have the chance to do what I wanted to do all along: that’s return to my unit,” Witt said.

She also said that she appreciated the judge’s recognition of the many gays who continue to quietly serve in the military.

—  John Wright

‘Don’t ask, don’t tell’ injunction now up to judge

JULIE WATSON  |  Associated Press

SAN DIEGO — U.S. government lawyers are trying to stop a federal judge from issuing an injunction that would immediately do what President Obama has yet to accomplish so far in his first term: Halt the military’s ban on openly gay troops.

Now it is up to U.S. District Court Judge Virginia Phillips to decide if she is willing to do that.

The White House says the legal filing Thursday, Sept. 23 by the U.S. Department of Justice attorneys in a federal court in Riverside follows government procedure by defending an act of Congress that is being challenged, but it does not detract from the president’s efforts to get ‘don’t ask, don’t tell’ repealed.

“This filing in no way diminishes the president’s firm commitment to achieve a legislative repeal of DADT — indeed, it clearly shows why Congress must act to end this misguided policy,” White House Press Secretary Robert Gibbs said in a statement e-mailed to The Associated Press.

Phillips declared the military’s “don’t ask, don’t tell” policy unconstitutional in her ruling Sept. 9 following a three-week, non-jury trial and said she would issue a nationwide order to stop the ban. She asked both sides for input first.

The Log Cabin Republicans, the gay rights organization that filed the lawsuit to stop the ban’s enforcement, wants her to issue an order that would stop the policy from being used to discharge any U.S. military personnel anywhere in the world.

Their attorney, Dan Woods, called the Department of Justice’s objections to the possible injunction hypocritical. He said the administration should be seizing the opportunity to let a judge do what politics has not been able to do.

“It’s sad and disappointing that the administration would file such a document days after it urged Congress to repeal ‘don’t ask, don’t tell,”’ Woods said.

In their court filing Thursday, U.S. Department of Justice attorneys argued the possible move would be “untenable” and that Phillips would be overstepping her bounds by halting a policy under debate in Congress.

Instead, she should limit any injunction to the 19,000 members of the Log Cabin Republicans, which includes current and former military personnel, the lawyers said.

“A court should not compel the executive to implement an immediate cessation of the 17-year-old policy without regard for any effect such an abrupt change might have on the military’s operations, particularly at a time when the military is engaged in combat operations and other demanding military activities around the globe,” federal attorneys said in their objection.

The “don’t ask, don’t tell” policy prohibits the military from asking about the sexual orientation of service members. Under the 1993 policy, service men and women who acknowledge being gay or are discovered engaging in homosexual activity, even in the privacy of their own homes off base, are subject to discharge.

In her ruling, Phillips said the policy doesn’t help military readiness and instead has a “direct and deleterious effect” on the armed services by hurting recruiting during wartime and requiring the discharge of service members with critical skills and training.

—  John Wright