Prop 8 supporters can appeal

David Boies, one of the attorneys that won a ruling against Prop 8 in district court

The California Supreme Court today issued an advisory ruling indicating that ProtectMarriage.com does have standing to appeal a trial court ruling that Proposition 8, the 2008 amendment to the state’s constitution that banned same-sex marriage.

The Supreme Court issued the decision after being asked to do so earlier this year by the 9th Circuit Court of Appeals. The Supreme Court’s opinion is an advisory ruling only, which means that the appellate court is not bound by its findings. The 9th Circuit judges, however, have previously indicated they would follow the Supreme Court’s decision.

Prop 8, approved by California voters the same year that Barack Obama was elected president, was ruled unconstitutional in the summer of 2010 by District Judge Vaughn Walker, who has since retired. The amendment was defended in court by ProtectMarriage.com, the primary backer of the Prop 8 referendum, after California Attorney General Jerry Brown refused to defend it in court. Gov. Arnold Schwarzenegger also failed to defend the amendment in court.

When ProtectMarriage.com appealed Walker’s ruling to the appellate court, the three-judge panel chosen to hear the case heard oral arguments in early December 2010 and a month later asked the state Supreme Court to weigh in on the question of standing.

In its ruling issued today, the Supreme Court wrote:

“In response to the question submitted by the Ninth Circuit, we conclude, for the reasons discussed above, that when the public officials who ordinarily defend a challenged state law or appeal a judgment invalidating the law decline to do so, under article II, section 8 of the California Constitution and the relevant provisions of the Elections Code, the official proponents of a voter-approved initiative measure are authorized to assert the state’s interest in the initiative’s validity, enabling the proponents to defend the constitutionality of the initiative and to appeal a judgment invalidating the initiative. …”

Now the wait begins to see if the 9th Circuit abides by the Supreme Court’s ruling on standing, and how the appellate court will rule on the merits of the case. Regardless of the outcome, the case is likely to be appealed again, first to the full 9th Circuit, and then to the U.S. Supreme Court.

Since Prop 8 was voted on in 2008, more than twice as many people are covered by marriage equality laws in the United States. New York legalized same-sex marriage in June, 2011. Several states including Illinois have new domestic partnership laws and several countries have also recognized marriages between gay and lesbian couples.

 

—  David Taffet

Prop 8 case heads back to court in September

Retired U.S. District Judge Vaughn Walker

The next hearing in the legal battle over Proposition 8, California’s constitutional amendment banning same-sex marriage, will take place before the state’s Supreme Court on Sept. 6.

The issue is whether the ballot initiative’s sponsors have standing to appeal a federal district judge’s ruling declaring Prop 8 unconstitutional. Former Gov. Arnold Schwarzenegger and Attorney General Jerry Brown refused to appeal the ruling. Brown is now governor and maintains his position in the case.

The hearing will take place in San Francisco and the justices have 90 days to decide whether they believe state law gives ballot measure proponents legal standing when the elected officials refuses to defend an issue, according to the LA Times.

The 9th Circuit Court of Appeals will wait for the state Supreme Court’s decision before proceeding.

If Prop 8 backers don’t have standing, the appeals court won’t take up the merits of the appeal. District Judge Vaughn Walker’s ruling will stand and Prop 8 will be unconstitutional. California would then allow same-sex marriage, as it did for six months before Prop 8 passed in 2008.

If Prop 8 backers do have standing, the 9th Circuit Court of Appeals would consider the merits of the case.

The LA Times reports that while the state Supreme Court has given sponsors of propositions wide latitude, the court has never ruled on whether citizens can stand in for elected officials, especially on an issue that doesn’t affect them.

Presumably, the proponents of Prop 8 were trying to prevent other people from marrying and having civil rights — as opposed to campaigning for a ban to prevent themselves from marrying.

—  David Taffet

What’s Brewing: Texas judge delays deportation hearing for gay, married Costa Rican immigrant

David Gonzalez and Mario Ramirez, via Stop The Deportations: The DOMA Project

Your weekday morning blend from Instant Tea:

1. A Houston judge on Thursday delayed a deportation hearing for a gay Costa Rican immigrant who’s fighting to stay in Texas with his husband. The judge delayed the proceeding for 35-year-old David Gonzalez until Aug. 31 based on a technicality, but also urged the two parties — Gonzalez’s attorney and U.S. immigration officials — to resolve the matter before then. Gonzalez married his husband, U.S. citizen Mario Ramirez, in California in 2008, but is unable to obtain a green card because of the Defense of Marriage Act. According to The Houston Chronicle, “The delay announced by the immigration judge Thursday means the couple will be able to celebrate the sixth anniversary of the day they met, Aug. 21, together without worrying that immigration agents will come knocking on their door.” Read more about the couple at Stop the Deportations: The DOMA Project.

2. The Obama administration has asked a federal appeals court to suspend its order from last week halting enforcement of “don’t ask, don’t tell.” In a brief filed Thursday, the U.S. Department of Justice asks the court to suspend the order by today, saying it wants to follow the timetable laid out in the DADT repeal act passed by Congress last year.

3. California Gov. Jerry Brown signed a bill Thursday making the state the first in the country to require schools to teach students about the contributions of LGBT people. The bill also prohibits instruction that reflects adversely on people because of their sexual orientation.

—  John Wright

Landmark gay history bill goes to Calif. governor

JUDY LIN | Associated Press

SACRAMENTO, Calif. — California lawmakers on Tuesday sent the governor a bill that would make the state the first requiring public schools to include the contributions of gays and lesbians in social studies curriculum.

The bill, passed on a party-line vote, adds lesbian, gay, bisexual and transgender people as well as people with disabilities to the list of groups that schools must include in the lessons. It also would prohibit material that reflects adversely on gays.

Democratic Assemblyman Tom Ammiano of San Francisco says SB48 is crucial because of the bullying that happens to gay students. Republicans called it a well-intentioned but ill-conceived bill and raised concerns that it would indoctrinate children to accept homosexuality.

“This bill will require California schools to present a more accurate and nuanced view of American history in our social science curriculum by recognizing the accomplishments of groups that are not often recognized,” said Assembly Speaker John Perez, the first openly gay speaker of the California Assembly.

The bill now goes to Gov. Jerry Brown, a Democrat, who has not said whether he would sign it. Former Gov. Arnold Schwarzenegger vetoed a similar bill in 2006.

Assemblyman Tim Donnelly, a Republican from Twin Peaks, said he was offended as a Christian that the bill was being used to promote a “homosexual agenda” in public schools.

“I think it’s one thing to say that we should be tolerant,” Donnelly said. “It is something else altogether to say that my children are going to be taught that this lifestyle is good.”

California law already requires schools to teach about women, African Americans, Mexican Americans, entrepreneurs, Asian Americans, European Americans, American Indians and labor. The Legislature over the years also has prescribed specific lessons about the Irish potato famine and the Holocaust, among other topics.

SB48 would require, as soon as the 2013-2014 school year, the California Board of Education and local school districts to adopt textbooks and other teaching materials that cover the contributions and roles of sexual minorities.

The legislation leaves it to local school boards to decide how to implement the requirement. It does not specify a grade level for the instruction to begin.

Opponents argued that such instruction would further burden an already crowded curriculum and expose students to a subject that some parents find objectionable. Assemblyman Chris Norby, R-Fullerton, said the bill micromanages the classroom.

“Our founding fathers are turning over in their graves,” Donnelly said.

The bill’s author, Sen. Mark Leno, D-San Francisco, said he hopes Brown will sign his bill. He dismissed arguments that the bill promotes certain sexual behaviors and said it removes censorship in textbooks.

“Bottom line, it’s only beneficial to share with students the broad diversity of the human experience and that our democracy protects everyone,” he said.

Before the Assembly vote, Perez pointed to a few contributions of gay people, including Friedrich von Steuben, one of George Washington’s military advisers who fled Prussia after he was hounded as a homosexual.

Von Steuben is credited with being one of the fathers of the Continental Army and teaching essential military drills.

He also cited Alan Turing, a mathematician who helped crack Nazi Germany’s secret codes by creating the “Turing bombe,” a forerunner of modern computers.

Some churches and conservative family groups warned the bill will drive more parents to take their children out of public schools.

“This sexual brainwashing bill would mandate that children as young as 6 years old be told falsehoods — that homosexuality is biological, when it isn’t, or healthy, when it’s not,” said Randy Thomasson, president of SaveCalifornia.com.

The Assembly passed the bill on a 49-25 vote.

—  John Wright

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

New Mexico may recognize same-sex marriage

New Mexico Attorney General Gary King

New Mexico Attorney General Gary King says same-sex marriages performed elsewhere may be valid in his state.

“A comprehensive legal analysis by my office concludes that valid same-sex marriages in other states would likely be valid in New Mexico,” King said.

According to the Santa Fe New Mexican, the opinion hasn’t been tested in court. However, an attorney general’s opinion carries quite a bit of weight.

New Mexico’s new governor, Susana Martinez, opposes same-sex marriage. Her predecessor, Bill Richardson, was unsuccessful getting a marriage-equality bill through the legislature.

Maryland’s attorney general has issued a similar ruling. New York and Rhode Island both recognize same-sex marriages performed in other states.

—  David Taffet

Top 10: As Prop 8, DOMA cases proceeded, Texas made its own marriage news

Marriage
LANDMARK RULING | Marriage equality supporters celebrate outside San Francisco City Hall after Judge Vaughn Walker’s August ruling declaring Prop 8 unconstitutional. (Rick Gerharter)

No. 4:

View all of the Top 10

As the year began, all eyes were on California, where conservative superstar Ted Olson and liberal luminary David Bois joined forces to challenge the state’s voter-approved constitutional amendment banning same-sex marriage. The case is Perry v. Schwarzenegger, but both Gov. Arnold Schwarzenegger and Attorney General Jerry Brown declined to defend Prop 8. As a result, ProtectMarriage.com, the main group behind the initiative, filed to intervene and defend it in court. On Aug. 4, six months after the trial began, Judge Vaughn Walker issued his ruling striking down the ban as unconstitutional, prompting celebrations across the country. The state refused to appeal, but the amendment’s supporters did. In December, a three-judge panel from the U.S. Court of Appeals for the Ninth Circuit convened to hear oral arguments in the Prop 8 case. The judges grilled attorneys on both sides, but marriage equality advocates said they were encouraged by the hearing. A ruling is expected next year, but the case likely will end up at the Supreme Court.

Meanwhile, two lawsuits challenging the federal Defense of Marriage Act went to trial in Massachusetts this year, and in both cases, DOMA came out the loser. Those cases are also now on appeal.

In Texas, Attorney General Greg Abbott continued his crusade against same-sex divorce. In a Dallas case, Abbott’s office won a victory in May when a state appeals court overturned a judge’s decision to grant a same-sex divorce. Abbott’s appeal of another divorce in Austin is pending.

Meanwhile, transgender issues and LGBT marriage rights collided in July as Houston trans woman Nikki Araguz found herself going up against her in-laws, following the death of her husband, volunteer firefighter Thomas Araguz. Araguz’s family and former wife claimed his marriage to Nikki was invalid because she was born a biological male, and that all his benefits legally should go to them instead of Nikki. The case is awaiting trial.

And Texas would make big marriage news again in November, when a gay couple from Dallas announced they’d been legally married without leaving the state. Mark Reed-Walkup and Dante Walkup held their wedding ceremony at the W-Dallas hotel, but it was officiated via Skype from Washington, D.C., where same-sex marriage is legal. A few weeks later, D.C. officials declared the marriage invalid. The couple later physically traveled to D.C. and got married again. They’ve also renewed a complaint against The Dallas Morning News for refusing to publish their wedding announcement.

Elsewhere, Illinois became the sixth state to approve civil unions. In Hawaii, the legislature approved a bill allowing same-sex civil unions, but Republican Gov. Linda Lingle vetoed it. Minnesota Gov. Tim Pawlenty vetoed a bill that would have given same-sex partners control over the dispensation of their partners’ remains after death, because he supports “traditional marriage.”

Wisconsin’s Supreme Court upheld that state’s gay marriage ban.

Internationally, Portuguese President Anabel Cavaco Silva signed into law legislation that allows same-sex marriage. Argentina’s legislature approved a bill legalizing gay marriage, and President Cristina Fernández de Kirchner quickly signed it into law.

— Tammye Nash

This article appeared in the Dallas Voice print edition December 31, 2010.

—  Kevin Thomas

Gavin Newsom’s win keeps political future afloat

JUDY LIN | Associated Press

SACRAMENTO, Calif. — He’s best-known for opening San Francisco’s City Hall to same-sex weddings and was once thought to be too liberal even for the bulk of California. But Gavin Newsom’s decisive Nov. 2 win as the state’s next second-in-command has rekindled prospects that he may one day be a viable candidate for governor or U.S. Senate.

The 43-year-old San Francisco mayor won handily over Republican Abel Maldonado in the race for lieutenant governor. While his new role is viewed largely as ceremonial, it marks a comeback of sorts for the well-coiffed politician.

Two years ago, Newsom was a focal point of the Proposition 8 campaign to ban gay marriage. One ad aired by the initiative’s supporters showed a videotaped clip of Newsom’s impassioned exclamation in 2004 that the door was open to gay marriage, “whether you like it or not.”

Voter approval of Proposition 8 that November raised questions about whether Newsom was electable statewide or would be too closely associated with gay marriage.

In an interview with The Associated Press following the election, Newsom said his win was a testament that Californians can disagree with their candidates on some issues but still vote for them.

“It was an interesting intellectual question that now I believe to some degree has been answered. And I’m very proud of that,” he said. “It’s nice to know that you can survive that in a political sense. Even if people disagree with you —and I know so many people did and do — people still will vote for you because on other issues, they perhaps have more confidence that I’m doing what I think is right.”

Newsom will transition into a job that functions as the state’s chief executive when the governor is away and serves on economic development and environmental commissions as well as two public university governing boards.

But the post will also help keep his political prospects afloat with a possible bid to succeed Gov.-elect Jerry Brown or perhaps give him a shot at the U.S. Senate.

“I think we’re back on the ‘Gavin Newsom has a bright future’ sort of swing,” said Corey Cook, an assistant professor of political science at the University of San Francisco. “He’s been up and down several times in the last seven years, and it seems like this is a pretty convincing victory. I think a lot of the folks who had criticized him and written his political obituary are sort of maybe rethinking that position right now.”

Newsom, of course, will have to be patient.

For starters, it’s uncertain whether Brown, 72, would seek a second term. In response to suggestions that he has told some Democrats privately he would only serve one term, Brown said “I’ve never made that commitment” and noted that his grandmother lived to 96.

And even if Brown decides not to seek re-election, Newsom will likely find himself jostling with other Democratic hopefuls for the state’s top job.

Newsom might also look to the Senate if Dianne Feinstein decides to leave, but it’s a move her political consultant dismissed, saying the senator has started fundraising.

“That’s not happening. She’s running,” said Bill Carrick, a Los Angeles-based Democratic consultant with decades of experience in state and national politics.

Carrick said Newsom will have to get creative as lieutenant governor and use the office to get the public to see him in a multidimensional way, beyond merely being a strong proponent of gay rights.

Newsom demurs on his political future, saying he’s just focused on repairing the state: “I’m not thinking beyond it,” he said.

Newsom said he plans to avail himself to the next governor as Democrats pledge to work on returning power to the local level. He says he’s in a unique position, having served as mayor of a county for seven years, to help the governor negotiate the budget with lawmakers and contracts with labor unions. He says he can also serve as a conduit between the state and local governments.

“I really think we have an opportunity to redefine the relationship between the two offices, and that’s not me getting ahead of myself and that’s not me playing above my job description. It’s not that. It’s just in a supportive role, as needed and filling in blanks and just wanting to be of help in a substantive way,” Newsom said. “I have no interest in spending time with ceremonial parts of the job.”

Newsom, however, has been accused of grabbing headlines as mayor while failing to focus on the details of running government. San Francisco Supervisor Ross Mirkarimi, who has challenged Newsom over police foot patrols in high-crime neighborhoods, said the mayor has sometimes been too insular.

“At times I thought it closed him to debate and the spirit of us working together,” Mirkarimi said. “I think he’s a big-picture kind of guy and I like that. But it means he also needs the right team to implement the brass tacks, which sometimes I’ve been critical of not happening.”

Despite his concerns, Mirkarimi said he believes Newsom will be able to use the lieutenant governor’s seat as a springboard to higher office.

“Newsom will figure out when it’s time to shine and when it’s time to be a silent partner,” he said.

—  John Wright

California Supreme Court refuses to force Gov. Schwarzenegger to appeal Prop 8 decision

Ruling means case may hinge on whether Yes on 8 has standing

Lisa Keen  | Keen News Service

The California Supreme Court on Wednesday night, Sept. 8 denied a petition from a conservative group seeking to force California Gov. Arnold Schwarzenegger to participate in an appeal of the Proposition 8 case.

The full court issued its decision with a simple two-sentence declaration, denying a petition from the Pacific Justice Institute. The denial came just hours after Schwarzenegger and state Attorney General Jerry Brown submitted letters to the court, explaining that they were not participating in the appeal of Perry v. Schwarzenegger.

In a letter from his attorney, Gov. Schwarzenegger indicated what had been uncertain before — that he had decided not to appeal the Proposition 8 court decision to the 9th Circuit.

The definitive statement from Schwarzenegger — coupled with the state supreme court’s refusal to require state participation in the appeal — means the ability of Proposition 8 proponents to appeal may depend entirely on the legal standing of the Yes on 8 coalition. (There is one remaining possibility: the County Board of Supervisors of Imperial County, California, has asked to serve as an intervenor in the appeal. Because the county issues marriage licenses, it may be able to demonstrate a necessary element of standing — that it is impacted by the district court decision.)

Gov. Schwarzenegger had until Sept. 11 to make a decision and, though his position on marriage equality for gay couples has been changing, his most recent statements seemed to indicate he would not direct the state’s attorney general to appeal the decision from the U.S. District Court in San Francisco.

That decision, issued Aug. 4 by Judge Vaughn Walker, found Proposition 8 violates the federal constitutional guarantee to equal protection. The Yes on 8 coalition filed its appeal, and a three-judge panel of the 9th Circuit has said it will hear the appeal during the first week of December, along with arguments concerning whether the Yes on 8 coalition has standing to appeal.

Hoping to shore up the legitimacy of that appeal, the Pacific Justice Institute, a conservative legal group, filed an appeal — Beckley v. Schwarzenegger — to the California Supreme Court this week, asking justices to force the governor to instruct the attorney general to join the appeal in the 9th Circuit.

The state supreme court ordered the governor and attorney general to weigh in on this matter Wednesday. And, in a five-page letter Sept. 8, Counsel for the Governor Andrew Stroud told the court, “Although Beckley may disagree with the Governor’s decision not to file a notice of appeal [in the Proposition 8 case in federal court], it was the Governor’s decision to make.”

A letter from Attorney General Jerry Brown’s deputy, Tamar Pachter, reiterated that Brown has long opposed Proposition 8 as unconstitutional and that Brown’s decision not to appeal the federal court decision in Perry v. Schwarzenegger “is an ordinary and sound exercise of the discretion secured by law to his office.”

Pachter says the Pacific Justice Institute’s petition is based on its “fears that the the federal courts will rule that [Yes on 8 proponents] lack standing to pursue their appeal …”

“But the Attorney General has no duty to appeal at all, let alone to file an appeal he has determined is legally unjustified, soley to manufacture federal appellate standing in private parties,” wrote Pachter.

Copyright ©2010 Keen News Service. ALL RIGHTS RESERVED.

—  John Wright

Court won’t force Calif. officials to defend Prop 8

Associated Press

SACRAMENTO, Calif. — A California court has refused to order Gov. Arnold Schwarzenegger and Attorney General Jerry Brown to appeal a ruling that overturned the state’s gay marriage ban.

The 3rd District Court of Appeal on Wednesday, Sept. 1 denied a conservative legal group’s request to force the officials to defend voter-approved Proposition 8.

Presiding Justice Arthur Scotland did not explain why the appeals court turned down the request filed two days earlier by the Pacific Justice Institute.

The institute now plans to take the matter to the California Supreme Court, Chief Counsel Kevin Snider said Thursday.

“We are disappointed that the appellate court showed indecisiveness in trying to prevent a constitutional crisis,” Snider said. “They didn’t want to deal with it.”

The institute maintains the attorney general and governor have the duty to uphold all laws, including those passed by voters.

Brown has said he cannot defend Proposition 8 because he thinks it is unconstitutional; Schwarzenegger has chosen to remain neutral.

Chief U.S. District Judge Vaughn Walker struck down Proposition 8 last month as a violation of gay Californians’ civil rights.

The measure approved by 52 percent of California voters in November 2008 amended the state Constitution to outlaw same-sex unions five months after the state Supreme Court legalized them.

The state has until Sept. 11 to challenge Walker’s ruling. Both Brown and Schwarzenegger have said they don’t plan an appeal.

The coalition of conservative and religious groups that sponsored the ban has appealed the ruling by Walker. But doubts have been raised about whether its members have authority to do so because as ordinary citizens they are not responsible for enforcing marriage laws.

Twenty-seven members of the California Assembly sent Schwarzenegger a letter this week urging the governor to bring an appeal if Brown will not.

—  John Wright