What’s on tap for 2012?

Court cases on both coasts will impact marriage equality, while November elections could mean continued progress legislatively — or a time of backsliding

Inside-Cover

WAITING GAME | Members of the anti-Prop 8 legal team, from left, Therese Stewart, Chad Griffin, David Boies, Ted Butros and Ted Olson, speak during a news conference after a hearing in the 9th Circuit Court of Appeals on Dec. 6, 2010, in San Francisco. Thirteen months later, the 9th Circuit judges are expected to issue opinions any day now on whether Prop 8 proponents have legal standing to appeal the trial court ruling, and whether Judge Vaughn Walker was correct in declaring the anti-gay-marriage amendment unconstitutional. (Eric Risberg/Associated Press)

Lisa Keen  | Keen News Service
lisakeen@mac.com
Significant events are crowding the calendar for 2012, and each promises considerable drama and suspense for the LGBT community.
Here are the 10 most important, from a national perspective, to keep an eye on:

• The next decisions on Proposition 8: A three-judge panel of the 9th Circuit U.S. Court of Appeals could release its opinions any day now. That’s “opinions,” plural.
Before the panel can rule on the constitutionality of California’s law banning marriage for same-sex couples, it must decide whether the Yes on 8 coalition has legal standing to appeal the federal court ruling that Prop 8 is unconstitutional, and it must decide whether there is any justification for Yes on 8’s request that the lower court decision be vacated.
The list of possible outcomes in Perry v. Brown — the case brought by the American Foundation for Equal Rights with famed attorneys Ted Olson and David Boies leading the charge — is mind-boggling. Whatever the results, any or all aspects could be appealed to the U.S. Supreme Court immediately or they could be appealed to a full 9th Circuit bench and then to the Supreme Court.
But the panel’s decision will almost certainly have political impact, too. Not only will it affect the momentum of the marriage equality movement, it will almost certainly become fodder in the presidential campaigns.

• The decision, on appeal, in DOMA: A three-judge panel of the 1st Circuit U.S. Court of Appeals will hear oral arguments, perhaps as soon as early February, in a powerful challenge to the federal Defense of Marriage Act’s denial of federal benefits to same-sex married couples.
The challenge, referred to most often as Gill v. OPM, is actually three consolidated cases, two brought by Gay & Lesbian Advocates & Defenders (GLAD) and one by the state of Massachusetts.
While there are other challenges under way to DOMA, this is the “big guns” challenge and the one most likely to reach the U.S. Supreme Court first. And while there is no deadline by which the panel must render its decision, it is likely to turn out one by year’s end.
Then, as with Proposition 8, the case could go to the full circuit court on appeal or straight to the Supreme Court. And, if the appeals court decision is rendered before the November elections, it will almost certainly provoke debate on the presidential campaign trail.

• Tammy Baldwin’s historic Senate bid: U.S. Rep. Tammy Baldwin is not the first openly gay person to run for U.S. Senate, but she’s the first who has a real chance of winning.
The daily Capital Times is already referring to her as the “likely” Democratic nominee to fill the seat being vacated by Democrat Herb Kohl. She doesn’t have a challenger for the nomination. But she will have a very tough battle against whomever the Republicans put on the ballot.
That’s because the battle will be for more than just one seat in the powerful U.S. Senate, which currently has a breakdown of 53 in the Democratic Caucus and 47 in the Republican. It will be part of a multi-state slugfest between the parties over control of the chamber, the Congress and the nation’s laws.

• The fight for the Senate: Polls at the moment indicate voters are inclined to vote for Democrats over Republicans next November. But that sentiment is not providing a large margin — one or two points —  and it’s too soon to guess who the voters will blame for what 11 months from now.
But some Senate races — in addition to Tammy Baldwin’s — could have big consequences for LGBT voters.
In Virginia, a pro-gay former governor, Tim Kaine, will likely be pitted against an anti-gay former senator, George Allen. In Massachusetts, a pro-gay challenger, Elizabeth Warren, will almost certainly be the Democrat facing incumbent Scott Brown, whose attitude toward the community has been much less friendly.
And at least seven other states are expected to have competitive races for the Senate.

• Counting the “Gay Caucus”: U.S. Rep. Barney Frank, D-Mass., will be starting his 40th year in Congress when the House reconvenes Jan. 17. And it will be his last.
Frank announced last year that he is retiring at the end of his term. When he does, the clique of four openly gay members of Congress — Frank, Baldwin and Reps. Jared Polis and David Cicilline — will shrink by one. If Baldwin fails to win a Senate seat, it could shrink by half.
But there are prospects for adding members. Openly gay Wisconsin Democratic Assemblymember Mark Pacon is running for Baldwin’s U.S. House seat. And there are three other openly LGBT candidates for the U.S. House this November: Marko Liias from Seattle, Mark Takano from Riverside, Calif., and Kyrsten Sinema from Phoenix.
So, the number of openly gay members of Congress could go from four to as low as two (though zero is, technically, possible) to as high as seven. But no one will have the seniority and clout that Frank has had — and has used — to advance pro-gay measures.

• On hold, and on defense, in Congress: Pro-LGBT bills — such as efforts to repeal DOMA and pass the Employment Non-Discrimination Act — are not likely to see much action in 2012. But anti-gay measures might.
Why? Because it’s an election year and Republicans still control the House. And supportive Democrats will not be inclined to push controversial legislation during an election year, because it can detract from the focus on jobs and the economy, where most voters want focus right now.
Republicans, on the other hand, have often used hostile measures aimed at gays during election years as a way of putting Democrats on the spot with voters generally and gays specifically.

• Ballot battles abound: There will be important LGBT-related ballot measures before voters in several states this year.
North Carolina and Minnesota will vote on whether to ban same-sex marriage through amendments to their state constitutions. Voters in Maine will decide whether to strike down their existing ban on same-sex marriage.
LGBT activists in Washington State are gathering signatures to put a measure on that state’s ballot to gain marriage equality. A small group in California has until May 15 to gather more than 800,000 signatures to put a measure on the ballot there to repeal Proposition 8.
And the California Attorney General is expected to announce by Jan. 9 whether opponents of a new bill to include information about LGBT figures in history as part of the public school curriculum can begin circulating petitions to get a repeal measure on the ballot there.
All of these have the potential to be big, expensive and consequential battles.

• Fight for freedom of religion: The right-wing Alliance Defense Fund and others have a concerted effort under way in the courts to undermine laws prohibiting discrimination based on sexual orientation and gender identity.
Their strategy is to argue that people who discriminate against LGBT people do so because their religious beliefs require them to do so. Their question to the court is, “What rules? The First Amendment guarantee of free exercise of religion or the equal protection clause that says all citizens should be treated equally under the law?”
One case has already reached the U.S. Supreme Court and failed, but other cases — many other cases — are winding their way through nearly every circuit in the country. And their outcomes have the potential to chip away at the strength of the nation’s legal mandate that all people be treated equally.

Tammy-and-Obama

U.S. Rep. Tammy Baldwin, left, President Barack Obama, right

• A fight for the White House: The difference for LGBT people between having President Barack Obama in the White House and President George W. Bush has been stark. So the consequences of November’s presidential election will also be profound.
Either Obama stays, and things continue to improve — in law and in society’s attitudes — or a new president is elected from a field of Republicans who seem, at times, to be vying for the mantle of most gay-hostile candidate.
In the latter case, LGBT people can expect progress to halt or backslide.

• Ah, the unpredictable: One of the bigger LGBT stories of 2011 happened in February, and it was one nobody expected: The Obama administration announced it considered DOMA unconstitutional and would not argue for its defense in most cases.
Another big story that no one expected: The Obama administration announced a major new diplomatic mission to push for protection of human rights for LGBT people around the world.

And given that Rep. Frank said in January 2011 he’d run for re-election in 2012, it was a surprise, in November, when he announced that he would not. As Frank pointed out, circumstances change.

Circumstances change, things change, people change. And often, they change each other.

But history marches on through time, and only in retrospect can any trajectory be certain as to where it’s going.

© 2012 by Keen News Service. All rights reserved.

This article appeared in the Dallas Voice print edition January 6, 2012.

 

—  Kevin Thomas

Appeals court rules in favor of fired transgender woman

Conservative 11th Circuit panel overturns trial court decision, says firing violated her right to equal protection

Lisa Keen  |  Keen News Service
lisakeen@me.com

A three-judge panel of the conservative 11th Circuit U.S. Supreme Court of Appeals on Tuesday, Dec. 6, ruled in favor of an employee of the Georgia General Assembly who was fired after telling a supervisor that she was undergoing male-to-female sex change treatment.

The supervisor, Sewell Brumby, told the employee, then known as Glenn Morrison, that the gender transition would be “disruptive” to the workplace, that it would make some co-workers “uncomfortable” and that “some people would view it as a moral issue.”

The employee, now known as Vandiver Elizabeth Glenn, filed suit with the aid of Lambda Legal Defense saying the firing violated Glenn’s constitutional right to equal protection.

The firing, argued Lambda, was both discrimination based on sex and based on a medical condition. A district court ruled for the supervisor.

But the panel said the equal protection clause of the U.S. Constitution “requires the state to treat all persons similarly situated alike or, conversely, to avoid all classifications that are ‘arbitrary or irrational’ and those that reflect ‘a bare … desire to harm a politically unpopular group.’

“The question here is whether discriminating against someone on the basis of his or her gender non-conformity constitutes sex-based discrimination under the Equal Protection Clause,” said the panel, in Glenn v. Sewell Brumby. “… we hold that it does.”

Those reasons included a 1989 decision in Price Waterhouse v. Hopkins in which the U.S. Supreme Court ruled that it was sex discrimination for a law firm to deny a promotion to a female lawyer because she was perceived as “macho.”

“All persons, whether transgender or not, are protected from discrimination on the basis of gender stereotype,” said the panel. “… The nature of the discrimination is the same; it may differ in degree but not in kind, and discrimination on this basis is a form of sex-based discrimination that is subject to heightened scrutiny under the Equal Protection Clause. Ever since the Supreme Court began to apply heightened scrutiny to sex-based classifications, its consistent purpose has been to eliminate discrimination on the basis of gender stereotypes.”

The panel took note that supervisor Brumby had expressed concern that other female employees at the General Assembly “might object” to Glenn’s use of the women’s restroom. But it said Brumby presented “insufficient evidence” to show this was the deciding motivation in firing Glenn.

© 2011 by Keen News Service. All rights reserved

This article appeared in the Dallas Voice print edition December 9, 2011.

—  Kevin Thomas

Appeals court rejects ‘homophobic panic’ claim

Lawyers for Robert Van Hook, convicted of murdering gay man in 1985, told court psychological reports could have supported his claims of mental disease

Van-Hook.Robert

Robert Van-Hook

LISA CORNWELL  |  Associated Press
editor@dallasvoice.com

CINCINNATI — A federal appeals court on Tuesday, Oct. 4 upheld an Ohio man’s death penalty for killing a man he met in a gay bar in 1985, rejecting claims that prosecutors violated his rights by not providing psychological reports showing he may have been motivated by “homophobic panic.”

A three-judge panel of the 6th U.S. Circuit Court of Appeals unanimously affirmed a lower court’s ruling upholding the death penalty for Robert Van Hook, 51. The panel also rejected claims of ineffective counsel.

Van Hook’s attorney, Keith Yeazel, said Tuesday that he will either appeal to the full 6th Circuit or the U.S. Supreme Court after he has a chance to review the ruling.

The Supreme Court in November 2009 reversed an earlier decision by the 6th Circuit panel that had found ineffective trial counsel, and the panel said Tuesday that it was bound by the high court’s decision.

Van Hook’s latest appeal argued that the psychological reports showing he may have been motivated by “homophobic panic,” or rejection of his homosexual urges, rather than robbery, could have been used to support his claim of mental disease. The reports also would have been used to counter the murder element of “specific intent to cause the death of another person” and the aggravated robbery factor contributing to the death penalty, the appeal stated.

Van Hook claimed temporary insanity, but never denied strangling and then stabbing David Self to death at his Cincinnati apartment.

Prosecutors said he lured Self to the apartment with the intention of robbing him. He then mutilated Self’s body with a kitchen knife, hiding the murder weapon in the corpse before fleeing to Florida, where he was arrested and confessed.

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

—  Kevin Thomas

DADT repeal starts Tuesday, but will discrimination continue?

DOJ says Log Cabin lawsuit should be declared ‘moot,’ but LCR attorney warns that without ruling, discriminatory policies could be reinstated

Baldwin.Polis
STILL FIGHTING | Attorney Dan Woods, right, and Log Cabin Republicans Executive Director R. Clarke Cooper, left, pose together following the ceremony last December in which President Obama signed legislation repealing DADT. (Photo courtesy Log Cabin Republicans)

Lisa Keen  |  Keen News Service
lisakeen@me.com

“Don’t ask, don’t tell” will be off the books Tuesday, Sept. 20. But there is still concern among some that the removal of that specific law barring gays from the military will not stop discrimination against gays in the military.

And Servicemembers Legal Defense Network is warning active duty military to be aware of rules affecting them if they choose to be openly gay in uniform.

Log Cabin Republicans’ attorney Dan Woods reminded a three-judge panel of the 9th Circuit U.S. Court of Appeals on Sept. 1 that Congressional repeal of DADT is not enough to end discrimination against gays in the military. Woods noted that before passage of DADT in 1993, there was a military regulation — not a federal law — that banned “homosexuals” from the military.

“That ban had existed for decades,” Woods said.

And if the 9th Circuit panel does not affirm a district court decision finding DADT unconstitutional, Woods added, “the government will be completely unconstrained in its ability to again ban gay service in the military.”

The 9th Circuit panel is considering a motion by the Department of Justice to declare the Log Cabin lawsuit moot since Congress has repealed DADT.

R. Clarke Cooper, executive director for Log Cabin Republicans said Tuesday, Sept. 13, that there is no prescribed timeline for the 9th Circuit issuing its decision on the motion.

“I know some people are expecting that we will have a ruling on that by Sept. 20 or just after that, but Dan Woods has told us that it could happen any time. And ‘any time’ means it could come in a month, or it could take several months. There’s nothing that says when the court has to issue its ruling,” Cooper said.

Woods pointed out that even since the repeal was passed by Congress last December, there is a new Congress now, there has already been a House vote to de-fund implementation of repeal, and there are “multiple candidates for president promising, as part of their campaign platforms, to repeal the repeal.”

One member of the panel, Judge Barry Silverman, suggested the latter concern, about presidential candidates, seemed a bit “speculative.”

“Well, there’s an election next year,”  responded Wood.

“Come back next year,” the judge shot back, with a barely stifled laugh. “If any of these things come to pass, it’ll be a different story. But in the meantime, this is the situation we’re faced with.”

The Department of Justice is urging the federal appeals panel to declare the Log Cabin Republicans v. U.S. lawsuit moot. The lawsuit — which won a powerful decision from U.S. District Court Judge Virginia Phillips in September 2010 — was largely responsible for prompting Congress to finally pass a bill repealing DADT in December.

Phillips had ordered the military to immediately stop enforcing DADT and, though the 9th Circuit put that order on hold pending appeal, military officials began warning Congress that it seemed inevitable the courts would strike down the law.

The military wanted a smooth transition to a DADT-free force, and Congress agreed.

Henry Whitaker, attorney for the U.S. Department of Justice, urged the panel to declare the litigation moot. He said the government would submit a motion after Sept. 20 to vacate the ruling and have the case sent back to the district court for dismissal.

Whitaker said that, if the 9th Circuit does affirm the lower court ruling, the government might even consider appealing it to the U.S. Supreme Court. And he stated several times that, until repeal takes effect, the government “is defending” DADT on its merits.

Woods said that if the federal appeals panel agrees with the government and vacates the lower court decision, and then a new president or Congress reinstates the policy, “we’d have to start all over again to prove again that laws banning open gay servicemembers are unconstitutional.

“This case took seven years to get here today. And it would be inappropriate to have to have people go through that all over again,” Woods said.

Woods also noted that affirming Judge Phillips’ ruling would remedy “collateral consequences” caused by DADT. Among those concerns, he said, are loss of benefits under the G.I. bill and benefits from the Veterans Administration, inability to be buried in VA cemeteries, and requirement that discharged servicemembers pay back their student loans.

The DOJ’s Whitaker said Log Cabin’s fear that a future Congress or president might re-enact DADT “does not pass the straight face test.” And, he added, said individuals discharged under DADT could seek remedies to these collateral forms of discrimination through individual lawsuits.

But Woods argued that it “ought not be necessary for every one of the thousands of people who have been discharged under this law to have to do that.

“If you vacate the judgment and take away the case,” Woods added “the government is unconstrained and simply might do it again. History might repeat itself.”

For now, SLDN is trying to prepare gay active duty servicemembers for the historic change that is about to take place Tuesday when the 60-day review period will have ticked away following certification of military readiness to implement repeal.

And, not surprisingly, some organizations, including SLDN, plan to celebrate the end of the 18-year-old ban.

“Many servicemembers want to attend these celebrations, and some might want to speak at them,” noted the SLDN website, adding that “no special rules apply to attendance at or participation in such events.”

But SLDN did warn gay servicemembers not to criticize their commanders — past or present — or elected officials, and not to urge defeat of any particular elected official or candidate. And the organization warned servicemembers not to wear their uniform to an event that is partisan in nature.

For more details on what’s allowed and disallowed for active duty service members in uniform, see SLDN.org.

© 2011 Keen News Service. All rights reserved.

This article appeared in the Dallas Voice print edition September 16, 2011.

—  Kevin Thomas

Attorney says gay Dallas man will take his battle for a divorce to the Texas Supreme Court

‘J.B.’

A court’s decision last year to deny a divorce to a gay Dallas couple is being appealed to the Texas Supreme Court.

Attorney James “Jody” Scheske confirmed Wednesday that his client, J.B., plans to appeal the August decision by the 5th Circuit Court of Appeals, which ruled that gay couples can’t divorce in Texas because the state doesn’t recognize same-sex marriage.

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, District Judge Tena Callahan ruled in October 2009 that she had jurisdiction to hear the case, calling Texas’ bans on same-sex marriage unconstitutional.

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

“We respectfullly disagree fundamentally with the Court of Appeals ruling that denies equal acess to divorce,” said Scheske, of Akin Gump Straus Hauer & Feld in Austin. “Thus we’ve decided to request that the Texas Supreme Court review the case.”

Scheske said his petition for review has not yet been filed and he’s requesting an extension of the deadline until February. He said once the petition is filed, the Supreme Court will decide whether to hear the case. Scheske acknowledged that the high court is considered very conservative, but he remains optimistic.

“In my business, you always believe that justice can prevail, and the justices on our Supreme Court, just like every other judge and lawyer, are bound to apply the law equally to everybody,” Scheske said. “I know people are cynical about that, but that’s actually the way our system works.”

Scheske recently scored a victory in another gay divorce case in Austin, where an appeals court ruled that Abbott could not intervene after a district judge granted a divorce to a lesbian couple. However, Scheske said the Austin ruling was based on procedural grounds and has no impact on the Dallas case.

—  John Wright

What’s Brewing: Dad says gay teen’s death not suicide; ex-cop gets jail in rape of transsexual

Lance Lundsten

1. Gay Minnesota teen Lance Lundsten was laid to rest Tuesday night, but questions remain about what caused his death. Some news reports have suggested that Lundsten, 18, took his own life in response to anti-gay bullying at school. However, Lundsten’s father maintains that he died from coronary edema, a condition caused by an enlarged heart. Autopsy results will take several weeks.

2. A former San Antonio police officer accused of raping a transsexual prostitute was sentenced to one year in jail on Tuesday. The former officer, Craig Nash, pleaded guilty to official oppression after prosecutors agreed in exchange not to charge him with sexual assault by a police officer, which carries a life sentence. Prosecutors also agreed not to pursue an allegation by a man who said Nash raped him a few years earlier.

3. A federal appeals court in Louisiana today will hear a case involving two gay dads who simply want both of their names listed on their adopted child’s birth certificate. A federal district judge and a three-judge panel of the 5th U.S. Circuit Court of Appeals have already ruled in the gay couple’s favor, but the bigoted state attorney general is appealing the decision. The couple is represented by Lambda Legal’s Ken Upton of Dallas, who warns of a “gaping loophole” in the doctrine of full faith and credit if the decision is overturned: “An exception that permits states arbitrarily to ignore legal parent-child relationships as families travel throughout the United States would create unprecedented chaos and harm.”

—  John Wright

Court says Texas AG can’t block gay divorce

Angelique Naylor

Associated Press

AUSTIN — The Texas attorney general can’t block a divorce granted to two women who were legally married elsewhere, an appeals court ruled Friday, Jan. 7.

A judge in Austin granted a divorce last February to Angelique Naylor and Sabina Daly, who were married in Massachusetts in 2004 and then returned home to Texas.

A day after the divorce was granted, Texas Attorney General Gregg Abbott filed a motion to intervene in the case, arguing the judge didn’t have the jurisdiction to grant the divorce because Texas has a constitutional ban on same-sex marriage. The judge ruled that the attorney general’s motion wasn’t timely, a decision Abbott then appealed.

In Friday’s ruling, a three-judge panel of 3rd Texas Court of Appeals in Austin said the state was not a party of record in the divorce case and Abbott therefore did not have standing to appeal.

The ruling, however, does not settle the debate over whether same-sex couples should be allowed to divorce in Texas, where a different appeals court has ruled against a gay couple seeking a divorce in the state.

The 5th Texas Court of Appeals in Dallas ruled in August that gay couples legally married in other states can’t get a divorce in Texas. In that case, Abbott had appealed after a Dallas judge said she did have jurisdiction to grant a divorce — though had not yet granted one — and dismissed the state’s attempt to intervene.

The ruling by the Dallas appeals court’s three-judge panel also affirmed the state’s same-sex marriage ban was constitutional. Texas voters in 2005 passed, by a 3-to-1 margin, a constitutional amendment to ban same-sex marriage even though state law already prohibited it.

Austin attorney Jody Scheske, who handled the appeals in both divorce cases, acknowledged the divergent rulings far from settle the issue of gay couples seeking a divorce in Texas.

“It’s complicated and to some extent remains unsettled and that’s unfortunate,” he said. “If you have a legal marriage you should have the same equal right to divorce as all other married people have.”

But for his client in the Austin case, the Friday ruling means she will remain divorced, Scheske said.

“For the larger issue, what it means is the state of Texas can’t intervene in private lawsuits just because it doesn’t like one of the trial court’s rulings,” he said. “The state was not a party, so they couldn’t intervene after the fact.”

The attorney general can choose to ask the entire Austin appeals court to hear the case there or can appeal the Friday ruling to the Texas Supreme Court.

Abbott spokeswoman Lauren Bean said their office “will weigh all options to ensure that the will of Texas voters and their elected representatives is upheld.”

“The Texas Constitution and statutes are clear: only the union of a man and a woman can be treated as a marriage in Texas. The court’s decision undermines unambiguous Texas law,” Bean said.

Unlike the Dallas case, the Austin case did not examine whether the judge had jurisdiction to grant the divorce. Ken Upton, a staff attorney for Lambda Legal, a national legal organization that promotes equal rights for gay, lesbian, bisexual and transgender people, noted the Austin appeals court decision was in fact quite narrow.

“Basically, the only rule that comes out of it is that (Abbott) waited too long,” he said.

He said the predicament of gay couples seeking divorce in Texas highlights what happens when states adopt “such different views about marriage and relationships.”

“The more we have this patchwork of marriage laws, the more difficult it is for people who don’t have access to the same orderly dissolution,” he said.

—  John Wright

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

A viewer’s guide to the Proposition 8 arguments

3-judge panel from 9th Circuit appeals court takes up case challenging voter-approved amendment banning same-sex marriage in California; C-SPAN will televise proceedings

Lisa Keen  |  Keen News Service lisakeen@me.com

THE NEXT STEP | Kristin Perry, from left, and Sandra Stier, listen as attorney Theodore Olson speaks at a news conference at the Federal Building in San Francisco in July 2009. A three-judge panel from the 9th Circuit Court of Appeals will hear arguments in the case on Monday, Dec. 6. (Jeff Chiu/Associated Press)

A federal appeals panel in San Francisco will hear oral arguments Monday, Dec. 6, in the landmark challenge to Proposition 8 — California’s voter-passed constitutional amendment banning same-sex marriage.

Broadcast of the district court trial last January was disallowed due to objections by some witnesses who said they feared harassment. But only attorneys will appear before the court Monday, and the 9th Circuit has agreed to allow the proceedings to be broadcast on C-SPAN and in other venues around the country.

A three-judge panel will hear arguments regarding the appeal of a lower court decision that held Proposition 8 violates the federal Constitution’s guarantees to equal protection and due process of law.

The Aug. 4 decision from Judge Vaughn Walker was the first time a federal court had struck down a statewide same-sex marriage ban, and similar bans exist in the constitutions or statutes of 38 other states.

Another six states have interpreted existing law as excluding same-sex couples from marriage licensing. Only five states and the District of Columbia have marriage equality laws.

If the 9th Circuit U.S. Court of Appeals upholds the lower court decision, the ruling would make the bans in California and eight other western states unenforceable. But the decision of the 9th Circuit — whatever it is — will almost certainly be appealed to the U.S. Supreme Court, and a decision there could affect bans in all states.

But there are also numerous potential variations to this simple scenario.

The most prominent potential variation at the moment concerns whether the group that has been defending Proposition 8 in court has legal standing to bring its appeal to the 9th Circuit.

It is a dull question compared to the drama of the original three-week trial of witnesses who testified about how Proposition 8 had damaged their lives. But its resolution could have enormous consequences for the case and will consume one of two hours set aside for Monday’s appeal.

Here is some key information most court watchers will need to know and will want to take notice of Monday:

Case name: Perry v. Schwarzenegger is the shorthand name for the case. The full name is Perry v. Schwarzenegger and Hollingsworth et. al.

Time and Place: Monday, Dec. 6, 10 a.m. PDT (noon, CST) at the 9th Circuit U.S. Court of Appeals, in San Francisco.

Where to watch: Nationally, C-SPAN will be broadcasting the proceedings live. Court enthusiasts can also go to the federal courthouse in select cities around the country to watch a live feed — in Boston; Brooklyn, N.Y.; Portland, Ore.; Seattle, Wash.; Pasadena, Calif.; and two other courthouses in San Francisco.

The Parties: Perry is Kristin Perry, one of four plaintiffs who originally filed the lawsuit challenging Proposition 8. Perry seeks to marry her partner of 10 years, Sandra Stiers. They have four children. The other two plaintiffs — also a couple — are Paul Katami and Jeff Zarrillo, who have been together for nine years.

The city of San Francisco was also designated as a plaintiff-intervenor in the district court, meaning the city did not bring the lawsuit but established that it had a governmental interest in the outcome.

Schwarzenegger is, of course, Republican Gov. Arnold Schwarzenegger, who represents the California government in the case. Neither Schwarzenegger nor California Attorney General Jerry Brown (now governor-elect) was willing to defend Proposition 8 in the appeal.

So the real appellants in the case are the original “proponents” of the ban, identified as the Yes on 8 campaign (aka ProtectMarriage.com), and include State Sen. Dennis Hollingsworth and others. In addition, the board of supervisors and clerk of Imperial County are seeking the right to serve as appellants as well.

The schedule: The first hour of the two-hour argument will be focused on the issue of whether the Yes on 8 appellants and/or Imperial County have legal standing to appeal the lower court’s decision (see below). There will be a “brief” break, and then the second hour will be focused on the merits of the appeal (see below). The entire proceeding is likely to be concluded by around 12:15 p.m. Pacific Time.

The attorneys: At least six attorneys will be involved in Monday’s argument — three on merits and three on standing.

On merits, famed conservative attorney Ted Olson will argue for the four plaintiffs, and Therese Stewart, the openly gay chief deputy city attorney for San Francisco, will present arguments for the city, which would like to see the ban struck down. Conservative attorney Charles Cooper, who led the defense of Proposition 8 at the district court trial, is expected to argue the merits for proponents.

On standing, it has not yet been announced who will argue the standing issue for plaintiffs, the Yes on 8 Proponents, or Imperial County.

Legal standing issue: Not just anybody can initiate a lawsuit and appeal the decision, but courts err on the side of allowing a party to appeal.

Nevertheless, a party or parties seeking to appeal must still show they are at least vulnerable to an “actual” injury because of the decision below. That injury can include an economic one, but it has to be an injury more “concrete” than the fact that appellants disagree with the lower court decision.

Proponents will argue that the fact they were allowed standing in the U.S. District Court should mean they should naturally have standing on appeal.

The merits: Two provisions of the U.S. Constitution’s 14th Amendment are at issue, both encompassed in this language: “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

Concerning due process, a state cannot deny citizens a fundamental right, including the right to marry, unless it can show a compelling reason to do so. U.S. District Court Judge Vaughn Walker said proponents failed to establish “any historical purpose for excluding same-sex couples from marriage, as states have never required spouses to have an ability or willingness to procreate in order to marry.”

With equal protection, the government may not treat one group of citizens with less favor than others unless it has a reason to do so. It may not treat oppressed minorities with less favor unless it has a compelling reason to do so.

Judge Walker ruled that gays and lesbians are an oppressed minority and that proponents failed to establish evidence of even a simple, rational reason to treat them differently, much less a compelling one.

The Judges: The 9th Circuit on Monday, Nov. 29, announced the three judges that will make up next Monday’s panel — and it’s a dramatic line-up.

The senior-most judge — in age and experience on the federal appeals bench — is Stephen Reinhardt, 79, a Carter nominee who has ruled favorably on gay-related cases before.

The least senior is N. Randy Smith, 69, a native of Utah, an appointee of President George W. Bush, and a graduate of Brigham Young University Law School, an entity of the Mormon Church which played an enormous role in promoting Proposition 8.

In the middle is Judge Michael Hawkins, 65, a Clinton appointee, based in Phoenix, Ariz.

Prop 8 proponents on Wednesday, Dec. 1, filed papers asking Reinhardt to recuse himself because his wife, Ramona Ripston, is executive director of the Southern California chapter of the ACLU, which has been actively involved in trying to invalidate Prop 8.

But Reinhardt on Thursday morning, Dec. 2, issued a statement refusing to step down from the trial, saying there is no legal reason to question his impartiality.

Timetable after argument: There is no deadline by which the three-judge panel must issue its opinion, however, a decision is likely to be forthcoming within a few months. The losing party then will almost certainly appeal that decision to the full 9th Circuit U.S. Court of Appeals,which may or may not agree to hear an appeal.

The losing party at that point would then likely appeal to the U.S. Supreme Court. The earliest the Supreme Court would likely get such an appeal would be in the fall of 2011, and the earliest it would rule would be in the late spring of 2012.

If the proponents or Imperial County lose on the question of standing, the 9th Circuit could decide not to make a ruling on the merits. But proponents and/or Imperial County would almost certainly appeal the decision concerning standing to the Supreme Court.

Should the Supreme Court rule that either of those parties has standing, it would then send the question on the merits of the appeal back to the 9th Circuit for a decision.

That eventual decision on the merits from the 9th Circuit could then be appealed to the Supreme Court. Wild guess timetable for a decision from the Supreme Court on merits with this scenario? 2014.

© 2010 by Keen News Service. All rights reserved.

This article appeared in the Dallas Voice print edition December 3, 2010.

—  Michael Stephens

Court allows military to continue enforcing DADT pending appeal

LISA LEFF  |  Associated Press

SAN FRANCISCO — A federal appeals court on Monday, Nov. 1 indefinitely extended its freeze on a judge’s order halting enforcement of the military’s “don’t ask, don’t tell” policy, heightening pressure on the Obama administration to persuade the U.S. Senate to repeal the law before a new Congress is sworn in.

A divided three-judge panel of the 9th U.S. Circuit Court of Appeals granted the U.S. government’s request for a stay while it challenges the trial court’s ruling that the ban on openly gay service members is unconstitutional.

The same panel, composed of two judges appointed by President Ronald Reagan and one appointed by President Bill Clinton, on Oct. 20 imposed a temporary hold keeping “don’t ask, don’t tell” in place.

Monday’s decision means gay Americans who disclose their sexual orientations still can’t enlist in the armed forces and can be investigated and ultimately discharged if they already are serving.

“We continue to warn service members that it is unsafe to come out as long as this law remains on the books,” said Aubrey Sarvis, executive director of the Servicemembers Legal Defense Network.

In an eight-page order, two judges said they were persuaded by the Department of Justice’s argument that U.S. District Court Judge Virginia Phillips’ worldwide injunction against the policy “will seriously disrupt ongoing and determined efforts by the Administration to devise an orderly change.”

“The public interest in enduring orderly change of this magnitude in the military — if that is what is to happen — strongly militates in favor of a stay,” Judges Diarmuid F. O’Scannlain and Stephen S. Trott wrote in their majority order. “Furthermore, if the administration is successful in persuading Congress to eliminate (the policy), this case and controversy will become moot.”

Another reason they gave for imposing the freeze was decisions by four other federal appeals courts that cast doubt on whether Phillips exceeded her authority and ignored existing legal precedents when she concluded gays could not serve in the military without having their First Amendment rights breached.

Judge William Fletcher entered a partial dissent, saying he would have preferred the panel had heard oral arguments before granting the stay. Fletcher said he thinks “don’t tell, don’t tell” should not be used to discharge any existing service members while the case was on appeal.

“Defendants would not be required during the pendency of the appeal to change their recruiting practices, to change their personnel manuals, or, subject only to the requirement that they not actually discharge anyone, otherwise to change their practices,” Fletcher said.

President Barack Obama repeatedly has said he opposes “don’t ask, don’t tell” but favors ending it legislatively instead of through the courts. Over the summer, he worked with Democrats to write a bill that would have lifted the ban, pending completion of a Defense Department review due Dec. 1. The legislation passed the House but was blocked in the Senate.

The president has pledged to push for another vote during Congress’ lame duck session after Tuesday’s elections.

“The president claims to want to see ‘don’t ask, don’t tell’ ended. It is time that he stop talking and start working to make a real difference for gay and lesbian Americans by pushing for repeal when Congress returns,” said R. Clarke Cooper, executive director of Log Cabin Republicans, the gay rights group that sued to overturn “don’t ask, don’t tell” in Phillips’ court,

The court ordered the government to submit its brief in its broader appeal by Jan. 24 and gave Log Cabin Republicans until Feb. 22 to reply. It did not schedule oral arguments in the case.

“For the reasons stated in the government’s submission to the appellate court, we believe the stay is appropriate,” Pentagon spokesman Bryan Whitman said.

—  John Wright