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

Log Cabin asks federal judge to halt DADT

Sides make closing arguments after 2-week trial

JULIE WATSON  |  Associated Press Writer

RIVERSIDE, California — Lawyers for a Republican gay rights organization asked a federal judge Friday, July 23 to issue an injunction halting the military’s ban on openly gay service members.

Government lawyers countered by warning U.S. District Judge Virginia A. Phillips not to overstep her bounds while ruling on the lawsuit by the Log Cabin Republicans.

The exchange came as both sides made closing arguments in the case after a two-week trial.

It was unclear when Phillips would make a ruling on the policy that forbids openly gay personnel in the military. Legal experts say she may hold off to see if Congress is going to repeal the policy.

Attorney Dan Woods, who represents the 19,000-member Republican group, argued the policy violates the constitutional rights of gay military members to free speech, due process and open association.

“Log Cabin Republicans have brought this case to trial to call out the government on the wrong it’s doing on current and future homosexuals who wish to serve their country. We ask you to do them right,” Woods told Phillips.

The case is unique in that it is not based on an individual’s complaint but rather is a sweeping attack on the policy. It is the biggest legal test of the law in recent years.

The trial could not come at a worse time for President Barack Obama, who has criticized the military’s “don’t ask, don’t tell” policy for gays since taking office last year but has failed to get Congress to repeal it.

U.S. Department of Justice attorney Paul G. Freeborne said during his closing argument that Woods was asking the judge to go beyond her powers.

“We do not believe the court has the authority to issue a nationwide injunction,” he said.

The U.S. House of Representatives voted May 27 to repeal the policy, and the Senate is expected to take up the issue this summer. In deciding to hear the challenge, Phillips said the “possibility that action by the legislative and executive branches will moot this case is sufficiently remote.”

During the trial, plaintiffs presented seven expert witnesses and six military officers who have been discharged under the policy. Lawyers also submitted remarks by Obama stating “don’t ask, don’t tell” weakens national security.

Woods asked Phillips to impose a permanent injunction that would prevent the policy from being applied not only within the U.S. but anywhere in the world.

“Even if ‘don’t ask, don’t tell’ once did further an important government interest, it no longer does so,” Woods told the judge.

Government attorneys have said Congress should decide the fate of the policy — not a federal judge. They presented only the policy’s legislative history in their defense.

“Don’t ask, don’t tell” prohibits the military from asking about the sexual orientation of service members but requires discharge of those who acknowledge being gay or are discovered to be engaging in homosexual activity, even in the privacy of their own homes off base.

The Log Cabin Republicans, which includes former and current members of the military, said more than 13,500 service members have been fired under the law since 1994.

Testimony from former service members ranged from a decorated Air Force officer who was let go after his peers snooped through his personal e-mail in Iraq, to a sailor whose supervisor concluded he was gay after he refused to visit prostitutes.

Woods argued the policy harms military readiness and unit cohesion by getting rid of talented people. He pointed out the military has relaxed its standards and now allows convicted felons to make up for a shortage of personnel while the country is at war.

“In other words, our military will give a convicted felon a gun but will not give a gay guy a typewriter,” he said.

Freeborne told the court Obama’s statements criticizing the policy underscored that the decision should be made in the political arena.

“What you’ve essentially heard is a policy debate, a debate that should occur in Congress, not before a court,” he told the judge.

Phillips told Freeborne his argument overlooks the fact that the court “is directed to look at the effect of the statute.”

—  John Wright

DART guts transgender policy

Closed-door session leads to proposal that could take protections from gay and lesbian employees and offer none to transgender employees

By John Wright | Online Editor wright@dallasvoice.com

LGBT advocates expressed outrage this week after learning that Dallas Area Rapid Transit had effectively gutted a months-old proposal to add transgender protections to the agency’s employment nondiscrimination policy.

Following a 30-minute closed-door session to discuss the new policy on Tuesday, June 15, DART’s Board of Directors hastily approved an amendment stating that the agency won’t discriminate based on sexual orientation and gender identity “except to the extent permitted by federal and/or Texas law.”

Because there are no state or federal employment protections for LGBT people, the amendment could allow DART to discriminate against workers based on both sexual orientation and gender identity.

LGBT legal experts said the amendment would not only nullify the addition to the policy of gender identity, but it would also rescind DART’s protections for sexual orientation, enacted in 1995.

Cece Cox, associate executive director at Resource Center Dallas, said she felt the LGBT community’s “trust has been shattered.”

“Without answers from DART, we are left to speculate that DART does not care about equity for LGBT people and even perhaps that this was deliberately sabotaged,” Cox said in a statement released Thursday. “We have not seen action like this since ExxonMobil rescinded employment protections at their merger in the most crass display of disregard for their LGBT employees in recent corporate history. A final vote has not taken place. DART has time to do the right thing. If it does not, DART should be prepared for outrage from the LGBTA community.”

The DART Board of Directors is scheduled to take a final vote on the new policy Tuesday, June 22. The proposal to add gender identity to the policy came about in response to allegations that the agency discriminated against a transgender bus driver.

RCD spokesman Rafael McDonnell said the nature of the LGBT community’s presence at next Tuesday’s meeting likely will depend on what happens in the meantime.

“The question is going to be, are they going to change the language?” McDonnell said Thursday. “Do they get that the language is bad? And if so, what are they doing about it? I think that will reflect the tone of what we do on Tuesday.”

By noon Thursday, DART officials gave no indication they planned to revisit the amendment, which was caught by Dallas Voice after the agency forwarded a draft of the policy to the newspaper on Wednesday afternoon.

In response to questions about the amendment, DART spokesman Morgan Lyons insisted that the agency’s intent is to add gender identity to the policy and become more inclusive.

But Lyons couldn’t explain the reason for the amendment, and he denied requests for an interview with the agency’s attorneys.

Ken Upton, a senior staff attorney at Lambda Legal in Dallas, said he felt the community had been “royally screwed” by DART.

“It’s exactly the opposite of what they promised they were doing,” Upton said. “After all the work that’s gone into this, if this is what comes out of it, then we got nothing. They can say that’s not what they intended, but that’s what it says.”

This article appeared in the Dallas Voice print edition June 18, 2010.

—  Dallasvoice