Experts: Prop 8 ruling may dodge high court

9th Circuit panel crafts its decision striking down California amendment narrowly, avoids question of whether other states can ban marriage

Prop8

DAY OF DECISION | Supporters of marriage equality react outside the courthouse after a federal appeals court declared California's ban on same-sex marriage unconstitutional on Tuesday, Feb. 7 in San Francisco. (AP Photo/San Francisco Chronicle, Lea Suzuki)

LISA LEFF  |  Associated Press

SAN FRANCISCO — Conservative critics like to point out that the federal appeals court that just declared California’s same-sex marriage ban to be unconstitutional has its decisions overturned by the U.S. Supreme Court more often than other judicial circuits, a record that could prove predictive if the high court agrees to review the gay marriage case on appeal.

Yet legal experts seemed to think the panel of the San Francisco-based 9th U.S. Circuit of Appeals that struck down the voter-approved ban on Tuesday, Feb. 7 purposefully served up its 2-1 opinion in a narrow way and seasoned it with established holdings so the Supreme Court would be less tempted to bite.

The appeals court not only limited the scope of its decision to California, even though the 9th Circuit also has jurisdiction in eight other Western states, but relied on the Supreme Court’s own 1996 decision overturning a Colorado measure that outlawed discrimination protections for gay people to argue that the voter-approved Proposition 8 violated the civil rights of gay and lesbian Californians.

That approach makes it much less likely the high court would find it necessary to step in, as it might have if the 9th Circuit panel had concluded that any state laws or amendments limiting marriage to a man and a woman run afoul of the U.S. Constitution’s promise of equal treatment, several analysts said.

“There is no reason to believe four justices on the Supreme Court, which is what it takes to grant (an appeal) petition, are champing at the bit to take this issue on,’’ University of Michigan law school professor Steve Sanders said. “The liberals on the court are going to recognize this was a sensible, sound decision that doesn’t get ahead of the national debate … and I don’t think the decision would be so objectionable to the court’s conservatives that they would see a reason to reach out and smack the 9th Circuit.’’

Lawyers for the coalition of religious conservative groups that qualified Proposition 8 for the November 2008 ballot and campaigned for its passage said they have not decided whether to ask a bigger 9th Circuit to rehear the case or to take an appeal directly to the Supreme Court.

However, they said they were optimistic that if the high court accepts an appeal, Tuesday’s ruling would be reversed.

“The 9th Circuit’s decision is completely out of step with every other federal appellate and Supreme Court decision in American history on the subject of marriage, but it really doesn’t come as a surprise, given the history of the 9th Circuit, which is often overturned,’’ Andy Pugno, the coalition’s general counsel, said in a fundraising letter to Proposition 8’s supporters. “Ever since the beginning of this case, we’ve known that the battle to preserve traditional marriage will ultimately be won or lost not here, but rather in the U.S. Supreme Court.’’

Regardless of their next steps, gay and lesbian couples were unlikely to be able to get married in California anytime soon. The 9th Circuit panel’s ruling will not take effect until after the deadline passes in two weeks for Proposition 8’s backers to appeal to a larger panel, and the earliest the Supreme Court could consider whether to take the case would be in the fall.

Judge Stephen Reinhardt, who was named to the 9th Circuit by President Jimmy Carter and has a reputation as the court’s liberal lion, wrote Tuesday’s 80-page majority ruling with concurrence from Judge Michael Daly Hawkins, an early appointee of President Bill Clinton. Judge Randy Smith, who was the last 9th Circuit judge nominated by President George W. Bush, dissented.

In tailoring the decision to apply only to California, Reinhardt cited two factors that distinguish Proposition 8 from the one-man, one-woman marriage laws and constitutional amendments in the other 9th Circuit states and that he said demonstrate that it “serves no purpose, and has no effect, other than to lessen the status and humanity of gays and lesbians.’’

The first is that California since 2005 has granted same-sex couples all the rights and benefits of marriage if they register as domestic partners.

The second is that five months before Proposition 8 was enacted as a state constitutional amendment, the California Supreme Court’s Court had legalized same-sex marriage by striking down a pair of laws that had limited marriage to a man and a woman. California is the only state, therefore, where gays have won the right to marry and had it stripped away.

The amendment’s “singular’’ work of denying gay Californians the designation of marriage while leaving in place domestic partnerships proves that Proposition 8 deprives same-sex relationships of society’s dignity and respect, Reinhardt wrote.

“A rose by any other name may smell as sweet, but to the couple desiring to enter into a committed lifelong relationship, a marriage by the name of ‘registered domestic partnership’ does not,’’ he said. “We are excited to see someone ask, ‘Will you marry me?’, whether on bended knee in a restaurant or in text splashed across a stadium Jumbotron. Certainly, it would not have the same effect to see, ‘Will you enter into a registered domestic partnership with me?’”

The opinion goes on to draw parallels between California’s same-sex marriage ban and the Colorado opinion the Supreme Court struck down on a 6-3 vote after concluding that it was based on moral disapproval of gays. Justice Anthony Kennedy wrote the majority opinion in that case, known as Romer v. Evans, and if the court agrees to take up Proposition 8, the similarities could hit the “sweet spot’’ that might persuade him to side with four other justices in upholding the 9th Circuit, said Douglas NeJaime, an associate professor at Loyola Law School in Los Angeles.

“Everyone is looking to Justice Kennedy, assuming that Justice Kennedy would not issue a sweepingly bad decision for gay rights, and yet people don’t know if he is ready to go so far as to say nationwide same-sex couples can get married,’’ NeJaime said. “I think the opinion evidences a real savviness about the posture of this case and its position in the trajectory of a national movement for marriage for same sex couples.’’

Smith, the lone dissenting judge, disagreed that Proposition 8 necessarily served no purpose other than to treat gays and lesbians as second-class citizens. He pointed out that its backers claimed it could serve to promote responsible child-rearing among opposite-sex couples, and said courts were obligated to uphold laws in the face of civil rights challenges unless they were “clearly wrong, a display of arbitrary power (or) not an exercise of judgment.’’

“There is good reason for this restraint,’’ Smith said.

This article appeared in the Dallas Voice print edition February 10, 2012.

—  Kevin Thomas

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

More companies covering transgender surgery

List expected to grow as HRC adds benefit to Corporate Equality Index

LISA LEFF | Associated Press

SAN FRANCISCO — When Gina Duncan decided to undergo the medical treatment that would make her a woman, she had plenty to fear. The reactions of her children, her professional colleagues and friends. How her body would respond to hours on the operating table. If, at the end of it, she would look female enough so strangers wouldn’t gawk.

What the Orlando mortgage banker didn’t have to be anxious about was how she would pay for two of her surgeries. Her employer of 10 years, Wells Fargo, included breast augmentation and genital reconstruction as coverable expenses under its employee health plan. Duncan was told the San Francisco-based bank already had had 16 other employees transition to new genders and assigned a benefits specialist to walk her through the process.

“They had a template in place, and it was surprisingly supporting and mentally encouraging,” said Duncan, 55, who four years later still works for Wells Fargo. “So much of what I’d heard involved people who ended up losing their job, losing their family, losing their friends, becoming destitute.”

With little fanfare, more and more large corporations, including Coca-Cola, Campbell Soup and Walt Disney, have expanded their insurance coverage to meet the needs of transgender workers. The trend follows a concerted push by transgender rights advocates to get employers and insurers to see sex reassignment the way the American Medical Association does — as a medically indicated rather than an optional procedure.

“We understand people simply get appendicitis, and it is something our community deals with through insurance,” said Andre Wilson, who counsels companies on transgender issues as a senior consultant with San Francisco-based Jamison Green & Associates. “That’s what we need to understand about transsexualism. Not everybody will be diagnosed with Gender Identity Disorder, and in fact, few people will be. But the people who are diagnosed with it really need treatment.”

Among the corporations providing transgender-inclusive health benefits are some leading Wall Street and Main Street brands.

American Express, Kraft Foods, AT&T, Yahoo!, Eastman Kodak, Sears, Morgan Stanley, Price Waterhouse, General Motors and State Farm are among 85 large businesses and law firms that cover the cost of at least one surgery, according to a 2010 survey by the Human Rights Campaign, the nation’s largest gay rights group.

The number is expected to spike this year, when HRC adds availability of surgery-inclusive medical benefits for transgender employees or transgender dependents to the criteria in its annual corporate diversity report card.

To maintain the coveted 100 percent rating when the next Corporate Equality Index is published in the fall, companies will have to offer at least one insurance plan that covers at least $75,000 worth of surgery and other treatments recommended by a patient’s doctor.

“A lot of people are pretty surprised that alongside the cosmetic and experimental treatments that are excluded from mainstream plans, you can see very broad exclusions related to transgender care,” said Deena Fidas, associate director of HRC’s Workplace Project. “In raising the bar…we are addressing the root cause of the problem.”

Stephanie Battaglino, an assistant vice president at New York Life Insurance, has been working with a senior executive at her company to add transgender health benefits to the employee insurance plan. Battaglino, 52, started her transition five years ago, becoming the first New York Life employee to do so openly. To finance her surgeries, which were on a list of procedures not covered by insurance, she borrowed from her retirement account.

“I’ve often said to friends, ‘My transition at work went really, really smoothly, and if I had to do it again, the only thing I would change would be if I had my surgery covered,”’ she said. “To know it was covered and completely reimbursed would have cast everything in a much different light.”

New York Life has been open to the changes and expects to have the expanded coverage in place soon, Battaglino said. But that doesn’t mean the learning curve has been easy to negotiate.

The company initially was uncomfortable agreeing to $75,000 of allowable coverage, she said. But she said that concern was alleviated when it was explained that only two or three employees would likely need the benefits.

“The big misconception is we are going to go broke and all these transgender people are going to come out of the woodwork asking for gender reassignment surgery,” she said.

Some businesses see covering the cost of transgender surgery as not only an important human resources statement, but good business sense.

“Wells Fargo elected to offer this benefit to be competitive as an employer and also to support our comprehensive corporate commitment to diversity,” company spokesman Mary Eshet said.

Joanne Herman, the author of Transgender Explained For Those Who Are Not, said both corporate America and insurers need to understand that genital surgery is not the be-all and end-all in making a person’s appearance match the way he or she feels inside.

For men becoming women, undergoing facial reconstruction may be even more important because it will affect how they are perceived and treated in public, Herman said. The same is true for female-to-male transsexuals and breast surgery. Yet standard insurance plans typically dismiss both as cosmetic, even though people with untreated Gender Identity Disorder are at high risk of suicide and those who get treatment become better workers.

“If you are transsexual, living as anything other than that is a very bleak experience. It’s amazing how much happier I am, how much more productive, social and involved I am as Joanne,” she said.

—  John Wright

Court refuses to suspend lawsuit challenging DADT

LISA LEFF  |  Associated Press

SAN FRANCISCO — A federal appeals court has denied the government’s request to suspend a lawsuit challenging the military’s ban on openly gay servicemembers.

The 9th U.S. Circuit Court of Appeals in San Francisco issued an order Friday, Jan. 28 requiring the Department of Justice to file papers by Feb. 25 arguing why the court should overturn a Southern California trial judge who declared the “don’t ask, don’t tell” policy unconstitutional.

Government lawyers asked the 9th Circuit earlier this month to set aside the case because the Pentagon was moving quickly to satisfy the steps Congress outlined last month when it voted to allow the ban’s repeal. A Justice Department spokeswoman said it had no comment Saturday.

The appeals court did not explain in its order why it rejected the request. In his State of the Union address, President Barack Obama said he expected to finalize the repeal and allow openly gay Americans to join the armed forces before the end of the year.

On Friday, the vice chairman of the Joint Chiefs of Staff told reporters that the training of officers and troops the Pentagon has said is a predicate to full repeal would begin in February.

The Log Cabin Republicans, the gay political group whose lawsuit challenging “don’t ask, don’t tell” persuaded District Court Judge Virginia Phillips in September to enjoin the military from enforcing the policy, had opposed the government’s effort to put the case on hold.

R. Clarke Cooper, the group’s president, said Saturday that while he thinks the Pentagon’s efforts are sincere, the case should proceed as long as gay servicemembers still can be discharged.

“We said all along to the government we would drop our case if they would cease all discharges and remove all barriers to open service,” Cooper said.

Cooper, an Army reserve officer, said he knew of at least one service member facing a discharge hearing next month, even as the Pentagon moves forward with its training plan.

“We are not questioning the implementation process. We recognize the need for a deliberative process for implementing proper training materials and guidances for leadership,” he said. “But when you have a servicemember going before a discharge panel, this is kind of a ‘left hand-right hand’ thing that is happening.”

—  John Wright

‘Another bridesmaid moment for the transgender community’

Repeal of ‘don’t ask, don’t tell’ doesn’t apply to transgender recruits, who are barred from serving

LISA LEFF | Associated Press

SAN FRANCISCO — Before handcuffing herself to the White House fence, former Petty Officer First Class Autumn Sandeen carefully pinned three rows of Navy ribbons to her chest. Her regulation dress blue skirt, fitted jacket, hat and black pumps were new — fitting for a woman who spent two decades serving her country as a man.

Sandeen was the only transgender person among the six veterans arrested in April while protesting the military’s ban on openly gay troops. But when she watched President Barack Obama last month sign the hard-fought bill allowing for the ban’s repeal, melancholy tinged her satisfaction.

“This is another bridesmaid moment for the transgender community,” the 51-year-old San Diego resident said.

The “don’t ask, don’t tell” policy now heading toward history does not apply to transgender recruits, who are automatically disqualified as unfit for service. But the military’s long-standing posture on gender-identity has not prevented transgender citizens from signing up before they come out, or from obtaining psychological counseling, hormones and routine health care through the Department of Veterans Affairs once they return to civilian life.

So as the Pentagon prepares to welcome openly gay, lesbian and bisexual service members for the first time, Sandeen is not alone in hoping the United States will one day join the seven other nations — Canada, the United Kingdom, Spain, Israel, the Czech Republic, Thailand and Australia — that allow transgender troops.

“There is really no question, it’s just a matter of when,” said former Army Capt. Allyson Robinson, 40, a 1994 West Point graduate who has spoken to sociology classes at the alma mater she attended as a male cadet. “There are active-duty, as well as reserve and national guard transgender service members, serving today.”

No one knows how many transgender people are serving or have served. Neither the Department of Defense nor the VA keep statistics on how many service members have been discharged or treated for transgender conditions or conduct.

The Transgender American Veterans Association, an advocacy group founded in 2003, estimates there could be as many as 300,000 transgender people among the nation’s 26 million veterans.

When 50 TAVA members laid a wreath at the Tomb of the Unknown Soldier six years ago, representatives from every U.S. conflict since World War II were there, said former Navy Machinist Mate First Class Monica Helms, the group’s co-founder and president.

Most had spent years, if not decades, as veterans before they could acknowledge the mismatches between their brains and their bodies. Helms, 59, spent four years in the engine room of a nuclear submarine during the Vietnam War, but did not start living as Monica until 1997.

Military regulations state that men and women who identify with or present a gender different from their sex at birth have mental conditions that make them ineligible to serve. Those who have undergone genital surgery are listed as having physical abnormalities. Service members caught cross-dressing on base have been court-martialed for interfering with “good order and discipline,” according to the National Center for Transgender Equality.

Until the American Psychiatric Association removes Gender Identity Disorder from its Diagnostic and Statistical Manual of Mental Disorders, as it did for homosexuality in 1973, that’s likely to remain the case, Sandeen said.

The very diagnosis that keeps transgender Americans out of uniform has enabled some to obtain transition-related medical care and other services when they become veterans.

Federal law prohibits Veterans Health Administration (VA) facilities from performing or paying for sex-change surgeries. But some VA medical centers provide psychological counseling, sex hormones, speech therapy and other medical treatment short of gender reassignment surgery.

Sandeen said the VA hospital in San Diego made it possible for her to start living as a woman once she retired from the Navy a decade ago.

“As soon as I got an appointment with the psychiatry department, the first thing I said to them is, ‘I have gender issues. I don’t know if I’m a transvestite or a transsexual or if I’m something in between, but I need to work this out with a therapist,”’ she recalled.

She eventually received a recommendation to see a VA doctor who could prescribe estrogen to help her grow breasts and hips and diminish body and facial hair. The endocrinologist told her she first would have to try presenting herself as a woman for two-and-half-months.

Sandeen, already classified as a disabled vet with bipolar disorder, had lined up a work-study job at the hospital’s patient health library.

“February 6, 2003, my first day of being publicly female, I was working for $10 an hour at the VA helping other vets with health care needs,” she said. “The VA is the organization that helped me work this out.”

The attention Sandeen received as a veteran is not unusual, but not universal, transgender advocates say. In response to complaints that some transgender veterans have been treated disrespectfully or denied care at VA facilities, Helms’ group has lobbied the Veterans Affairs department to issue guidelines on services to which transgender patients are entitled.

San Diego resident Zander Keig, who was a woman during a two-year stint with the Coast Guard, had been on testosterone for a year when he wanted his prescription transferred from a suburban VA clinic. But veterans are not allowed to change their names on discharge papers so he was directed to the women’s VA clinic in San Francisco.

Keig, 44, said a senior physician there “grilled me with questions. Why are you taking T? Do you know what it’s doing to your body? How are you eligible for these services?”

“I said, ‘I established my eligibility for VA services in 1988, I have every reason to be here. Am I going to get my shots or not?”’ Keig recalled. He did get his injections.

In 2007, the VA complex in Boston became the first veterans’ medical provider to draft a policy designed to assure transgender veterans received consistent and sensitive care.

Department of Veterans Affairs spokeswoman Katie Roberts said the VA is reviewing the Boston policy and others, hoping to create a formal directive in the “near future.”

“As all veterans served this nation with the same expectation of honor and excellence, VA strives to provide all veterans equitable treatment respecting their honor by providing medical services with excellence,” she said.

Even with the enormous changes in their lives, many transgender veterans maintain connections with their military service. Sandeen still shops at a Navy commissary and grabs her military identification when she goes walking. Robinson considers her four years as a West Point cadet the best of her life, although she feared being caught with women’s clothes in her trunk.

“I love this country and I felt a personal calling to express that love of America through my willingness to sacrifice,” she said.

But when Robinson made her triumphant return to the academy for her speaking engagement, along with the congratulations, came comments that she was unworthy to be part of the “Long Gray Line.”

“It was as though the service I had rendered was suddenly worthless,” she said.

Former Air Force Sgt. Nicole Shounder, 52, who underwent sex reassignment surgery in 1999, has spent the last four years wearing a uniform at sea, first with the Coast Guard auxiliary and now, as a civil service mariner nurse aboard the USNS Robert E Perry, which recently supplied deployments in the Mediterranean.

Shounder considers it a privilege to wear Navy-issued collar brass and shoulder boards.

“Given my circumstances, it really is,” she said. “Essentially until someone can say otherwise, I am probably the only out and open post-op transsexual in uniform for the Navy, or as close as you can be.”

—  John Wright

Pentagon: No gays were discharged in past month

LISA LEFF | Associated Press

SAN FRANCISCO — No U.S. service members have been discharged for being openly gay in the month since the Defense Department adopted new rules surrounding the “don’t ask, don’t tell” policy, a Pentagon spokeswoman said Monday, Nov. 22.

Under new rules adopted Oct. 21, Defense Secretary Robert Gates put authority for signing off on dismissals in the hands of the three service secretaries.

Before then, any commanding officer at a rank equivalent to a one-star general could discharge gay enlisted personnel under the 1993 law that prohibits gays from serving openly in uniform.

Pentagon spokeswoman Cynthia Smith told The Associated Press that no discharges have been approved since Oct. 21.

Smith did not know if the absence of recent discharges was related to the new separation procedures. The Pentagon has not compiled monthly discharge figures for any other months this year, she said.

Based on historical trends, however, it appears the change, as well as moves by Gates and President Barack Obama to get Congress to repeal “don’t ask, don’t tell,” has caused discharge rates to fall dramatically, said Aaron Belkin, executive director of Palm Center, a pro-repeal think tank based at the University of California, Santa Barbara.

“Statistically, it would be extremely unlikely if we had a month in which there were no gay discharges,” Belkin said, noting that 428 gay and lesbian service members were honorably discharged under the ban in 2009.

A month without “don’t ask, don’t tell” discharges was welcome news, said Aubrey Sarvis, executive director of Servicemembers Legal Defense Network. Still, the organization continues to hear daily from military personnel who are under investigation for being gay and face the possibility of being fired.

“We have clients who are still under investigation, who are still having to respond, and in fact we have a client under investigation right now under suicide watch,” Sarvis said. “So ‘don’t ask, don’t tell’ has not gone away.”

Gates announced the change requiring the top civilian officials with the armed forces to personally approve “don’t ask, don’t tell” discharges after a federal judge in California ordered the military to immediately stop enforcing its ban on openly gay troops, declaring the 17-year-old policy unconstitutional.

An appeals court subsequently froze the judge’s order until it could consider the broader constitutional issues in the case.

Putting responsibility for firing gay personnel in the hands of the three service secretaries was not designed to slow the rate of discharges, Gates said at the time. Rather, concentrating that authority was meant to ensure uniformity and care in enforcement at a time of legal uncertainty, he said in a memo outlining the new rules.

Gates since has urged the Senate to repeal “don’t ask, don’t tell” before a new Congress takes office in January. He said this week he plans to release a monthslong study on how lifting the gay service ban would affect the armed forces and could be carried out on Nov. 30.

—  John Wright

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

Prop 8 backers slam trial judge in urging appeal

Marriage ban sponsors call Vaughn Walker’s consideration of evidence ‘egregiously selective and one-sided,’ accuse him of ‘willful’ disregard

LISA LEFF  |  Associated Press

SAN FRANCISCO — Backers of California’s same-sex marriage ban urged a federal appeals court to overturn the trial judge who struck down Proposition 8 by arguing late Friday, Sept. 17 that his consideration of evidence was “egregiously selective and one-sided.”

In written arguments to the 9th U.S. Circuit Court of Appeals, lawyers for the ban’s sponsors alleged that Chief U.S. Judge Vaughn Walker “quite willfully” disregarded a 1972 U.S. Supreme Court precedent and other relevant information when he decided the voter-approved measure was an unconstitutional violation of gay Californians’ civil rights.

“The district court based its findings almost exclusively on an uncritical acceptance of the evidence submitted by Plaintiffs’ experts, and simply ignored virtually everything — judicial authority, the works of eminent scholars past and present in all relevant academic fields, extensive historical and documentary evidence — that ran counter to its conclusions,” they wrote in their 134-page opening brief.

Lawyers for the two couples who successfully sued in Walker’s court are due to file their responses next month. A three-judge 9th Circuit panel has scheduled oral arguments in the case for the first week in December and put Walker’s order requiring the state to issue marriage licenses to same-sex couples on hold until it renders its own decision.

The court papers filed Friday contained unbridled criticism of Walker’s handling of the first federal trial to examine if the U.S. Constitution prevents states from limiting marriage to a man and a woman.

The appealing attorneys, who called two witnesses compared to 18 for the plaintiffs, asked the 9th Circuit to ignore the trial testimony on which Walker laboriously based his opinion, calling it “unreliable and ultimately irrelevant” to whether Proposition 8 passes constitutional muster.

“Having blinded itself to the genuine animating purpose of marriage, the district court was obliged to offer a different rationale for the institution, presumably one that is entirely indifferent to the gender of the spouses,” they wrote.

They also characterized as defamatory the judge’s conclusion that “moral disapproval” of gay men and lesbians was the main reason voters passed Proposition 8 in November 2008.

“The district court decision is an attack on the many judges and lawmakers and millions of Americans who rightly and reasonably understand that marriage is the unique union of a man and a woman,” said Alliance Defense Fund attorney Brian Raum, who is part of the legal team fighting to uphold Proposition 8. “The Hollywood-funded opposition wants to impose — through a San Francisco court — an agenda that America has repeatedly rejected.”

American Foundation for Equal Rights President Chad Griffin, whose organization organized and funded the lawsuit that led to Walker’s ruling, said he remains confident that it would be upheld in the 9th Circuit and ultimately, the U.S. Supreme Court.

“The fact remains that Proposition 8 is unconstitutional, as was proven conclusively and unequivocally through a full federal trial,” Griffin said. “There is no getting around the fact that the court’s decision was based on our nation’s most fundamental principles, and that the Constitution does not permit unequal treatment under the law.”

The 1972 case the Proposition 8 lawyers cited in their brief involved a gay couple who sought the right to marry in Minnesota and were rebuffed by that state’s highest court and ultimately, the U.S. Supreme Court, which refused to hear their appeal.

Before declaring Proposition 8 unconstitutional last month, Walker rejected arguments that he was bound by the 38-year-old case, determining that the high court’s rulings in subsequent gay rights cases were more relevant to his deliberations.

They also cited as evidence that Walker had exceeded the bounds of his authority in a 1982 decision in which the 9th Circuit ruled that a gay U.S. citizen who had obtained a marriage license in Colorado was not eligible to sponsor his foreign-born same-sex partner for immigration purposes.

The pro-Proposition 8 legal team devoted part of their filing to trying to persuade the 9th Circuit that they should be allowed to defend the ballot measure since California Gov. Arnold Schwarzenegger and Attorney General Jerry Brown have refused to appeal the lower court ruling.

Doubts have been raised about whether the coalition of religious and conservative groups that qualified Proposition 8 for the ballot and campaigned for its passage have authority to do so because its members are not responsible for enforcing marriage laws.

Under federal court rules, appealing parties have to demonstrate they have suffered a direct, concrete and individualized harm. The same-sex marriage ban’s sponsors meet those requirements, their lawyers argued Friday, because the California Supreme Court allowed them to defend Proposition 8 in an ultimately unsuccessful effort to get the measure overturned last year and Walker allowed them to defend it again in his court.

Lawyers for a Southern California county whose residents voted overwhelming for Proposition 8 also were due to submit briefs before midnight arguing why they also should be allowed to appeal. The Imperial County Board of Supervisors and the county clerk have maintained they have the legal right to challenge Walker’s ruling even if the ban’s sponsors don’t because counties issue marriage licenses.

If the 9th Circuit dismisses the appeal after deciding that neither the county nor the measure’s proponents have legal standing, Walker’s ruling would become final unless the U.S. Supreme Court agrees to take up the case.

If the high court refuses to intervene, gay couples would be able to marry in California again. An estimated 18,000 couples were married in California before Proposition passed.

—  John Wright

Church finds minister guilty for marrying gays

LISA LEFF  |  Associated Press

SAN FRANCISCO — A retired Presbyterian minister was found guilty of misconduct Friday, Aug. 27 by a church court for officiating the weddings of 16 gay couples when same-sex marriage was legal in California.

A regional commission of the Presbyterian Church (USA) ruled 4-2 that the Rev. Jane Spahr of San Francisco “persisted in a pattern or practice of disobedience” by performing the weddings in 2008 before Proposition 8 banned the unions in the state.

The church’s highest court has held that Presbyterian ministers may bless same-sex unions as long as they do “not state, imply, or represent that a same-sex ceremony is a marriage.”

By willfully challenging that holding, Spahr broke her ordination vows, the commission said in its majority opinion.

At the same time, however, the tribunal devoted most of its 21/2-page ruling to praising the 68-year-old pastor, a lesbian who founded a church group in the early 1990s for gay Presbyterians.

Spahr was acknowledged “for her prophetic ministry” and “faithful compassion. The commissioners called on the broader church to use her example “to re-examine our own fear and ignorance.”

The six-member commission representing 54 Northern California churches censured Spahr with a rebuke as punishment. Spahr said she was disappointed by the verdict and would appeal to a midlevel church court.

It was the second time the regional Presbytery of the Redwoods convened a court to consider charges against Spahr for sanctioning same-sex relationships.

In 2006, a church court composed of different members ruled that she had acted within her rights as an ordained minister when she married two lesbian couples in 2004 and 2005.

—  John Wright

Trial set for Calif. minister who performed gay weddings

LISA LEFF  |  Associated Press

SAN FRANCISCO — A retired Presbyterian minister and active critic of her faith’s position on same-sex marriage will be tried by a church court for performing the weddings of gay couples during a brief period when same-sex marriage was legal in California.

The Rev. Jane Spahr, 67, has been charged with “publicly, intentionally and repeatedly” violating Presbyterian Church (U.S.A.) doctrine by presiding at the weddings of 16 couples between June 2008 and November 2008, before California voters outlawed same-sex marriages.

“To turn my back on the love and lifelong commitments of these wonderful couples would have gone against my faith, the ministry where I was called, and most of all, against God’s amazing hospitality and welcome where love and justice meet together,” Spahr said in a written statement.

She has pleaded not guilty, explaining there are other parts of church doctrine that are just as important such as being welcoming and valuing diversity.

The church constitution defines marriage as a covenant between a man and a woman, but its Supreme Judicial Council has ruled that ministers can bless same-sex unions as long as they are not called marriages and the ceremonies don’t mimic traditional weddings.

The regional Presbytery of the Redwoods, which oversees 52 churches from an area north of San Francisco to the Oregon border, was required to bring the charges against Spahr earlier this year after a member filed a formal accusation against her.

Eleven of the couples Spahr married were expected to testify as witnesses at the trial scheduled to start Tuesday, Aug. 24 at a church in Napa.

“The question of this trial is, are state law and church law incompatible,” said the Rev. Robert Conover, the prebytery’s standing clerk. “Did Rev. Spahr violate the church constitution when she performed same-gender marriages that were legal?”

It’s the second time Spahr, a lesbian who founded a ministry for gay Presbyterians, has faced possible sanctions from her church. In 2006, she became the first pastor of her faith to be tried for officiating the weddings of gay couples from states that did not permit same-sex civil marriages.

The regional church tribunal acquitted her, but an intermediate church court rebuked her for misconduct the next year. The church’s highest court finally cleared Spahr of any wrongdoing, ruling she did not violate denominational law because the ceremonies she performed were not for government-recognized marriages.

Spahr’s lawyers plan to argue this time around that she would have been breaking church law and shirking her pastoral responsibilities if she had refused to marry gay couples who had the legal right to wed and wanted Presbyterian ceremonies.

“The implication of these charges is that Rev. Spahr should have told these couples no — that she should have advised these couples to go elsewhere,” the lawyers wrote in their legal brief. “The testimony in this case will show that Rev. Spahr’s was the more faithful response.”

If found guilty, Spahr could receive sanctions ranging from a rebuke, the most mild discipline, to a suspension. As with her previous case, the verdict following the upcoming trial would likely be appealed to a higher church court and take a few years to resolve, Conover said.

“Presbyterians, like most mainline Protestants, are accustomed to our church law and state law complementing each other,” he said. “We are in a situation now where what’s at argument is whether that is still the case.”

—  John Wright