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

For Valentine’s Day, a resonant tale of ‘Loving’ and marriage

lovingstory03The very title of the Supreme Court decision in Loving v. Virginia is almost too perfect not to respect the irony of what it represented.

In 1958, Richard Loving married a half-black, half-Native American named Mildred in D.C., then returned to their home in rural Virginia. A month later, sheriff’s deputies entered their bedroom as they slept, arresting them for violating the state’s anti-miscegenation law, which forbid mixing of the races. They were jailed, convicted and eventually banished from the state in a manner more akin to ancient Rome than modern-day America.

Virginia was hardly unique — as Barack Obama’s parents could probably tell you, 21 states banned mixed-race marriages in 1958. It would take nine years, following protracted legal wrangling, before the Lovings could live openly and legally as Virginians.

It is impossible to watch The Loving Story — which debuts on HBO, again ironically, on Valentine’s Day — and not consider it (especially in light of the events this week) as it relates to Proposition 8 and the rights of gays to wed. Indeed, the statement by one of the lawyers representing the Lovings that “marriage is a fundamental right of man” — spoken more than 40 years ago — resonates sharply for any gay person who has felt a lesser person because of the bigotry and antiquated thinking of considering a fellow man as being “other” … whether by race or sexual orientation.

There’s surprisingly little directorial commentary in this documentary, which is made up substantially of real-time newsreel and other footage of the Lovings at home and on TV, and their lawyers strategizing. Little comment is needed, especially when the offensive language of the courts speaks volumes: The races were meant to stay on separate continents, the Virginia county judge opined, cuz that’s how God wanted it.

Two things especially stand out in The Loving Story. The first is the couple at the center of it: A man and a woman of modest means and humble background who simply and truly were in love and wanted to live as man and wife and couldn’t understand what they were doing wrong. The second is that the arguments made — back then and now, on both sides — apply equally to same-sex marriage issues. We’ve come a long way, but damn, we still have so far to go.

— Arnold Wayne Jones

Four stars. Airs Feb. 14 at 8 p.m. on HBO.

—  Kevin Thomas

What’s Brewing: Anti-gay bill clears Montana House; Maryland Senate takes up marriage

Nathan Bowen

Your weekday morning blend from Instant Tea:

1. The Montana House approved a bill that would nullify local LGBT discrimination protections. “Missoula’s Democratic legislators were infuriated by the passage of House Bill 516, by Rep. Kristin Hansen, R-Havre. Her bill passed 60-39 and faces a final House vote before heading to the Senate. Sixty Republicans voted for it. All 32 Democrats voted opposed it, joined by seven Republicans. One Republican was absent.”

2. The president of a GLBT center in Enid, Okla., is accused of sexually molesting a 15-year-old. “According to EnidGLBT.org, Nathan Bowen is President of the Enid GLBT Community Center located in the 1300 block of S. Van Buren Street. According to the police report, Bowen and the victim began texting each other sexual messages after the victim met Bowen on Friday. The molestation incident happened on Sunday after Bowen allegedly picked up the minor at a park and took him to a home in the area.”

3. The Maryland Senate will begin debate on a marriage equality bill today: “Debate on the contentious measure to allow same-sex couples to marry is expected to run into Wednesday evening and carry over to Thursday. Miller has told senators to clear their weekend schedules in case an expected filibuster extends into Saturday. The bill, which would repeal Maryland’s definition of marriage as the union of a man and a woman, is widely expected to clear the Senate — but there are no guarantees. Twenty-four senators have declared their support for the measure, the minimum needed for final passage.”

—  John Wright

New attempt to legalize gay marriage in Chile

Chilean flag

While civil unions in Uruguay and marriage in Argentina were approved by legislatures — and civil unions in Ecuador were approved by voters under a new constitution — the Chilean Supreme Court may approve same-sex marriage in that country.

According to the Santiago newspaper El Mercurio, three couples have filed a lawsuit, and the Supreme Court has agreed to hear the case.

An attorney for the couples, Jaime Silva, argues that two provisions of the Marriage Act are unconstitutional. The first states that marriage is a solemn contract in which a man and woman come together. The second recognizes that a marriage concluded abroad will be recognized in Chile provided it is between a man and a woman.

Those provisions, Silva argues, violate Article 1 and other provisions in the constitution. Article 1 begins, “Men are born free and equal, in dignity and rights.”

Last summer we reported several South American countries were considering recognizing same-sex relationships.

In Chile, a civil union bill got bogged down in the legislature. Meanwhile, no movement has been reported on the issue in Bolivia, where President Evo Morales and Vice President Álvaro García Linera live together in the presidential palace.

P.S.: That is a Chilean flag. The blue stripe extends to the bottom on the Texas flag.

—  David Taffet

Fox News talks to Robert Rowling about Gold’s Gym controversy, quotes his neighbor Instant Tea

This is too funny. Highland Park billionaire Robert Rowling, CEO of TRT Holdings, the ownership group for both Gold’s Gym and Omni Hotels, has broken his silence about the controversy over his $2 million in contributions to American Crossroads. And guess who Rowling decided to talk to about it? That’s right, Fox News. But that’s not the funny part. In its story about the Gold’s Gym flap, which is oh-so-cleverly titled “This isn’t working out,” Fox News also quotes this blog, which it says “shares a neighborhood with Rowling.” Really? And which neighborhood would that be? Do they really think Instant Tea can afford to live in Highland Park? Well maybe we could if people like Fox News would link to our freakin’ site when they quote us!!! Bastards. Anyhow, here’s what Bobby-boy had to say for himself and what Fox News had to say about us:

“The facts are so distorted,” Rowling told Fox News, explaining that his donation to American Crossroads had nothing to do with social policies that could spark crossfire. “I’ve never heard one discussion of a social issue. This is all about fiscal sanity.” American Crossroads “supports conservative candidates, and even though those candidates may disagree with them on social issues, the resounding issue is fiscal responsibility.”

Rowling explained that his donation was made knowing that unlike its sister organization, Crossroads GPS, American Crossroads discloses its donors. “I gave to American Crossroads, where I knew my name would be published,” he said.

LGBT online newspaper the Dallas Voice, which shares a neighborhood with Rowling, on Monday likened the criticism from the gay community to similar backlash against Target Corp. over its financial support of an organization that backed Minnesota Republican gubernatorial candidate Tom Emmer, who has made clear his stance that marriage between a man and a woman is the only form that should be legally recognized.

“…Apparently the only thing we hold more sacred than shopping at Target is working out,” the newspaper deadpanned in a Monday posting.

Target Corp., which is known for its progressive employment policies and sponsorship of Minnesota gay groups, in August faced pressure from its shareholders to retool its donation process to avoid similar problems in the future.

“Gold’s Gym is apolitical. We welcome all members without regard to race, gender, or sexual orientation,” Rowling told Fox News. “We always have, and we always will.”

—  John Wright

Texas Rep. Louie Gohmert: Homosexuality is adultery in the Ten Commandments

Discussing “don’t ask don’t tell” on the Family Research Council’s Washington Watch Weekly radio program on Friday, Congressman Louie Gohmert, R-Texas, offered his response to those who point out that the Bible — if you read it closely and all — doesn’t really appear to condemn homosexuality per se:

“Some people say, ‘Where is homosexuality in violation of the Ten Commandments?’ Well, it’s adultery. It’s sexual relations outside of marriage, a man and a woman. Of course there are other verses that reference these specific acts, men lusting after men, etc., but specifically for the military, when anyone, whether they’re homosexual or heterosexual, cannot control their hormones to the point that they are a distraction to the good order and discipline of the military, then they need to be removed from the military.”

Gohmert goes on to agree that if DADT is repealed, the military would have to change its policies to allow “heterosexual immorality.”

“Well of course it would,” he says. “Well, I say of course it would. You would think that. But of course we’ve already shown through Congress that homosexuality deserves a more precious and privileged position just by some of the laws that we’ve passed.”

Gohmert is likely referring to the Matthew Shepard and James Byrd Jr. Hate Crimes Act, which he suggested last year could lead to the legalization of things like pedophilia, necrophilia and bestiality.

—  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

Thousands rally against gay marriage in Calif.

JUDY LIN  |  Associated Press Writer

SACRAMENTO, Calif. — Thousands of Christian conservatives spent 12 hours Saturday, Sept. 4 praying and fasting in front of the state Capitol at a gathering organizers described as spiritual repentance “when there is no hope for a nation.”

The daylong religious event titled, “TheCall to Conscience,” was led by Lou Engle as well as other pastors and speakers to protest gay marriage, pornography and abortion. Many of those attending slapped red “Life” stickers over their shirts and set up blankets and folding chairs facing a large stage with banners that read: “Only One Hope God.”

People close to the front of the stage held up their hands when called to prayer. They jumped and danced to musical performances between sermons. The gathering filled the west lawn of the state Capitol and hundreds of people spilled into the next block, but the rest of Capitol Mall’s five-block-long lawn went unused despite large screens and barricades set up for the occasion.

Offering stations were set up throughout the area.

Ken and Antoinette Rodrigues, who described themselves as born-again Christians, drove in from Fremont to attend Saturday’s rally after their daughter-in-law saw it over the Internet.

“It’s a little more blunt than I anticipated, not that I’m opposed to that, but the things they are speaking, it’s bold, very bold,” said Antoinette Rodrigues, 48. “But I feel that it’s very appropriate and timely.”

Engle said it was the 17th fast hosted by TheCall in 10 years. Previous events have been held in New York, Boston and Nashville, Tenn., as well as in other parts of California such as Pasadena and San Francisco. It follows a similar prayer march and rally to a Houston abortion clinic back in January.

The Sacramento event, Engle said, helped to highlight immoral laws being passed out of the Capitol and called on traditional marriage to be restored.

“If marriage is going to be upheld between a man and a woman, which we believe is the best for families and children and society, then right now, it seems we need divine intervention,” Engle said in an interview between appearances on stage. “That’s part of the reason we’re coming here, to pray, but also to take a stand and be a prophetic voice to stand for truth.”

Last month Chief U.S. District Judge Vaughn Walker struck down Proposition 8 as unconstitutional. The measure approved by 52 percent of California voters in November 2008 amended the state Constitution to outlaw same-sex unions five months after the state Supreme Court legalized them.

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

Telephone calls to Equality California weren’t immediately returned Saturday.

—  John Wright

Calif. lawmakers ask Obama, Congress to repeal DOMA

Associated Press

SACRAMENTO, Calif. — California lawmakers are asking President Barack Obama and Congress to repeal the federal Defense of Marriage Act, saying it discriminates against same-sex married couples.

The state Senate voted 22-12 Monday, Aug. 23 for a resolution urging that the 1996 law be overturned. It defines marriage as being between a man and a woman and allows states to refuse to recognize same-sex marriages performed in other states.

The Assembly approved AJR19 last August.

Critics of the Defense of Marriage Act say it deprives gay couples of important federal rights and benefits.

California voted in 2008 to ban gay marriage. On Aug. 4, a federal judge overturned the ban, sending the case to the 9th U.S. Circuit Court of Appeals.

—  John Wright

DOMA ruling suspended pending appeal

Associated Press

BOSTON — A ruling by a judge who found a federal law defining marriage as a union between a man and a woman unconstitutional will be suspended for 60 days while the U.S. Department of Justice decides whether it will appeal the decision.

U.S. District Judge Joseph Tauro ruled in July that the federal Defense of Marriage Act is unconstitutional.

An amended judgment in the case was filed in court Wednesday. The Justice Department now has 60 days to decide if it will appeal the decision to the 1st U.S. Circuit Court of Appeals in Boston.

Gay & Lesbian Advocates & Defenders, the Boston-based group that filed the legal challenge, said it did not oppose the government’s request for a stay pending any appeal.

—  John Wright