ACTION ALERT: Transgender marriage ban back on Texas Senate calendar for Tuesday

Equality Texas sends along word that SB 723, by Sen. Tommy Williams, R-The Woodlands, has been placed back on the Texas Senate’s intent calendar for Tuesday. SB 723 would remove a court order of sex change from the list of documents that can be used to obtain marriage licenses. A response to the Nikki Araguz case, the bill would effectively bar transgender people from marrying people of the opposite sex in Texas. To contact your state senator and urge them to oppose SB 723, go here.

—  John Wright

Unconstitutional ‘homosexual conduct’ law to remain on Texas books for another 2 years

In his legislative column on Friday, Daniel Williams mentioned that midnight today is the deadline for House committees to vote on bills that originated in the House. Which means that, assuming they aren’t voted out of committee today, several pro-equality bills will die. As Williams details on his own blog today, those bills include measures that would remove Texas’ unconstitutional “homosexual conduct” law from the books, add gender identity/expression to the state’s hate crimes law, and prohibit anti-LGBT discrimination in employment and insurance.

With a Republican supermajority in the House, no one really expected any of these bills to pass going into the session. So the fact that some of them even received committee hearings is a victory. And the good news is, a few anti-gay measures are slated to die along them, including one that would make it easier for the attorney general to block same-sex divorces, and the House version of a bill that would effectively bar transgender people from marrying people of the opposite sex. (It should be noted that the Senate version of the transgender marriage ban is still alive.)

Of course, there is always a risk that these or other anti-LGBT measures will be tacked on to other bills as amendments, but here’s hoping the Legislature is too busy from here on out with the budget and redistricting.

Speaking of the budget, last week we reported that the Senate’s version includes $19.2 million requested by the Texas HIV Medication Program to serve 3,000 anticipated new clients over the next two years. The House version of the budget left out this money, meaning low-income people with HIV/AIDS could be denied life-sustaining drugs. It’s now be up to a House-Senate conference committee to resolve the issue. On that note, the Campaign to End AIDS will hold a rally Friday at the Texas Capitol. For more info or to RSVP for the rally, contact Michelle Anderson at heavenly_gates_777@yahoo.com.

—  John Wright

Calif. AG: Prop 8 backers can’t defend marriage ban

Attorney General Kamala Harris

LISA LEFF | Associated Press

SAN FRANCISCO — California’s attorney general has again come out against the state’s same-sex marriage ban, this time telling the state Supreme Court the proponents of successful ballot initiatives do not have the right to defend their measures in court.

Kamala Harris, a Democrat who succeeded Gov. Jerry Brown in January as attorney general, submitted an amicus brief Monday in the ongoing legal dispute over the voter-approved ban known as Proposition 8.

In it, she argued that only public officials exercising the executive power of government have authority to represent the state when laws passed by voters or the Legislature are challenged.

“California law affords an initiative’s proponents no right to defend the validity of a successful initiative measure based only on their role in launching an initiative process,” Harris wrote.

The question of where the role of ballot measure backers ends is critical to the legal fight over California’s ban on same-sex marriages. Both Brown and former Gov. Arnold Schwarzenegger refused to defend the 2008 constitutional amendment on appeal after a federal judge struck it down last summer as a violation of civil rights.

Proposition 8′s sponsors asked the 9th U.S. Circuit Court of Appeals to allow them to step in, but the court punted the question to the California Supreme Court earlier this year, saying it was a matter of state law.

If the sponsors are not permitted to intervene, the lower court ruling overturning Proposition 8 will stand.

Lawyers for the coalition of religious and conservative groups that qualified the gay marriage measure for the ballot and campaigned for its passage have argued that initiative proponents need to be allowed to advocate for laws in court to prevent elected officials from effectively vetoing measures by not defending them in court.

Harris contended in her brief that rather than empowering citizens, granting the sponsors of initiatives the ability to overrule the governor and attorney general’s judgment “would rob the electors of power by taking the executive power from elected officials and placing it instead in the hands of a few highly motivated but politically unaccountable individuals.”

The California Supreme Court is expected to hold a hearing in the case before the end of the year.

Republican State Sen. Tom Harman of Orange County introduced a bill that would grant ballot measure sponsors the right to represent the state when elected officials refuse to defend enacted laws in court. The Senate Judiciary Committee defeated it on a 3-2 vote Tuesday.

—  John Wright

Judge’s gay relationship at issue in Prop 8 case

Judge Vaughn Walker

LISA LEFF  |  Associated Press

SAN FRANCISCO — Rumors swirled that the federal judge who had struck down California’s same-sex marriage ban last summer was gay, but the lawyers charged with defending the measure remained silent on the subject. Their preferred strategy for getting the ruling overturned on appeal was to focus on the law, not a judge’s personal life, they said.

Eight months later, Proposition 8′s proponents and their attorneys have taken a new position. They filed a motion Monday seeking to vacate Chief U.S. District Judge Vaughn Walker’s historic ruling, a move they said was prompted by the now-retired jurist’s recent disclosure that he is in a long-term relationship with another man.

Lawyers for the ban’s backers argue that the judge’s relationship status, not his sexual orientation, gave him too much in common with the couples who successfully sued to overturn the ban in his court. The judge should have recused himself or at least revealed the relationship to avoid a real or perceived conflict of interest, the lawyers say.

“If at any time while this case was pending before him, Chief Judge Walker and his partner determined that they desired, or might desire, to marry, Chief Judge Walker plainly had an interest that could be substantially affected by the outcome of the proceeding,” wrote attorneys for the coalition of religious and conservative groups that put Proposition 8 on the November 2008 ballot.

They are now asking the judge who inherited the case when Walker retired at the end of February to toss out Walker’s August decision. The 9th U.S. Circuit Court of Appeals already is reviewing its legal merits at the request of the voter-approved measure’s sponsors.

Walker has said that he did not consider his sexual orientation to be any more a reason for recusal than another judge’s race or gender normally would be. A spokeswoman said Monday that the judge wouldn’t comment on the motion.

American Foundation for Equal Rights President Chad Griffin, whose group has funded the legal effort to strike down Proposition 8, scoffed at the notion that the judge’s personal life could imperil his ruling.

Griffin noted that the Obama administration recently had decided to stop defending the federal law that bans recognition of same-sex marriage after determining that it, too, was unconstitutional.

“This motion is another in a string of desperate and absurd motions by the proponents of Proposition 8, who refuse to accept that the freedom to marry is a constitutional right,” he said.

Walker, a 67-year-old Republican appointee, declared Proposition 8 to be an unconstitutional violation of gay Californians’ civil rights. He also ordered the state to stop enforcing the gay marriage ban, but the 9th Circuit put his order on hold while the case is on appeal.

Speculation about Walker’s sexual orientation circulated during the 13-day trial that preceded his decision and after he handed down his ruling. Lawyers for Protect Marriage, the coalition that sponsored Proposition 8, however, had purposely refrained from raising his sexual orientation as a legal issue until Monday.

But they decided it gave them grounds for getting Walker’s decision struck down after the judge disclosed his 10-year relationship this month to a group of courthouse reporters, said Protect Marriage general counsel Andy Pugno.

“We deeply regret the necessity of this motion. But if the courts are to require others to follow the law, the courts themselves must do so as well,” Pugno added.

Indiana University Law School professor Charles Geyh, an expert on judicial ethics, said that without more evidence that Walker stood to personally benefit if same-sex marriages were legal in California, he found it difficult to imagine that the particulars of the judge’s same-sex relationship provided gay marriage opponents with an avenue for reversing his ruling.

“It really implies it would be fine if he were essentially surfing at bars and had a new partner every night because he wouldn’t want to be married,” he said. “I don’t see that as advancing their cause.”

Proposition 8′s sponsors also have been trying to get the federal appeals court to order Walker to return his personal video copy of the trial. The judge has been using a three-minute segment of one of their witnesses being cross-examined for a lecture he’s been giving on cameras in the courtroom.

—  John Wright

Unconfirmed reports indicate Sen. Royce West plans to vote in favor of trans marriage ban

Sen. Royce West

UPDATE: Kelvin Bass, a spokesman for Sen. West, returned my call regarding SB 723. According to Bass: “The Senator was not aware of this bill until reading the Dallas Voice article and had not yet formed an opinion but he will not be supporting the bill.” Although West’s office says he plans to vote against the bill, advocates are still urging people to contact other Democrats in the Senate and ask them to vote against the bill. Again, if no Democrats support the bill, it will die. Contact info for Senate Democrats can be found here.

ORIGINAL POST: Cristan Williams, the executive director of the Houston Transgender Center, posted a report on Twitter that Sen. Royce West, D-Dallas, is planning to vote in favor of Senate Bill 723. As Instant Tea previously reported, SB 723 would remove a court-ordered change of sex from the list of documents that can be used to prove identity when obtaining a marriage license. The bill has the potential to void all opposite-sex marriage in Texas where one partner is transgender.

Williams’ information was based on a report from a Houston-area transgender advocate who called West’s office to encourage him to oppose SB 723 and was told by a staffer that the senator had received a number of calls in support of the bill and would be voting for it. West’s office has not responded to requests that he confirm or deny the report.

SB 723 was originally on the list of bills to be considered on Monday, but the Senate adjourned both Monday and today without voting on it. The bill is now expected to be considered on Wednesday.

West, whose district includes much of the Oak Lawn neighborhood, can be reached at 512-463-0123 or by e-mail at Royce.West@senate.state.tx.us.

—  admin

DOMA under assault but still potent

Controversy over federal marriage ban creates rollercoaster ride for same-sex couples living with real-world consequences

DAVID CRARY  |  Associated Press

NEW YORK — These are frustrating, tantalizing days for many of the same-sex couples who seized the chance to marry in recent years.

The law that prohibits federal recognition of their unions in under assault in the courts. The Obama administration has repudiated it and taken piecemeal steps to weaken its effects.

Yet for now, the Defense of Marriage Act remains very much in force — provoking anger, impatience and confusion among gay couples.

Because of DOMA, some binational couples still worry about deportation of the non-citizen spouse. Survivor benefits aren’t granted after one spouse dies. And couples filing joint tax returns in the states allowing same-sex marriage must still file separately this month with the IRS.

Said Brian Sheerin, who wed his partner six years ago in Massachusetts, “There are times I feel like a third-class citizen.”

When DOMA was passed overwhelmingly by Congress in 1996, and signed by President Bill Clinton, it was a pre-emptive strike. There were no legally married same-sex couples in the United States.

Since 2004, however, thousands of gays and lesbians have married as Massachusetts, Vermont, Connecticut, New Hampshire, Iowa and the District of Columbia legalized same-sex unions. Many others have wed in foreign countries.

“What was once theoretical now has practical effects that people can see, that can’t be explained other than as discrimination,” said Jon Davidson, legal director of the gay-rights group Lambda Legal. “There are people who’ve been married six years who are increasingly getting impatient.”

The controversy around DOMA creates an emotional rollercoaster for same-sex couples.

Last July, for example, many of them rejoiced when a federal judge in Massachusetts ruled that the act was an unconstitutional infringement on equality for same-sex couples.

There was more elation in February, when President Barack Obama ordered his administration to stop defending the law in the still-pending Massachusetts case and several other lawsuits. Yet no one knows when these cases will finally be resolved.

Last month, there was a flurry of excitement among binational gay couples when a U.S. Citizenship and Immigration Services spokesman indicated that cases would be “held in abeyance” while broader legal issues were reviewed. Hopes soared that this would mean a halt in deportations of foreigners married to gay Americans, but within two days the federal agency said there would be no policy change.

“It’s gut-wrenching to go through the ups and downs,” said Doug Gentry, whose Venezuelan spouse, Alex Benshimol, faces a deportation hearing in July.

They briefly hoped the case would be put on hold — but now have been notified that an application for permanent residency for Benshimol has been denied.

“I’ve had the rug pulled out from under me so many times,” Gentry said. “You’re so used to getting your hopes up, only to get them dashed, that you almost don’t want to hope.”

The couple, who married last year in Connecticut after six years as partners, run a pet grooming business in Palm Springs, Calif.

“I don’t feel we’re different from any other family,” said Gentry, 53. “I don’t want to be forced to stay with my husband by going into exile, and leaving my home, my business and my country behind.”

DOMA also complicates life for U.S. citizen Edwin Blesch and his South African husband, Tim Smulian, who married in Cape Town in 2007.

Unlike some gay binational couples, in which the foreigner overstays a visa, Smulian has abided by the terms of tourist visas which limit him to six months annually in the U.S. That means that to be together, the two retirees must uproot themselves from their comfortable home on the northeast tip of Long Island and spend half the year abroad.

“It’s a great personal, financial and medical inconvenience,” said Blesch, 70, who has had past health problems, faces surgery this spring and relies on the care that Smulian provides him.

Both men believe DOMA is doomed to be struck down by the courts or repealed by Congress, but Blesch says the endgame could take years.

“It will be a long process,” he said. “I might be sitting in a rocking chair in a nursing home by then — or dead.”

For men and women whose same-sex spouse has died, DOMA can prevent the payment of Social Security or Veterans Administration survivor benefits that would be paid out to heterosexual widows and widowers.

In California, 77-year-old Ron Wallen worries that he might be unable to afford staying in the home near Palm Springs that he and his partner of 58 years, Tom Carrollo, had shared before Carrollo’s death in March.

The two men married in June 2008, during a brief window where same-sex marriage was legal in California. But now DOMA prevents Wallen from receiving Carrollo’s Social Security survivor benefits, and he’s living only on his own $900-a-month Social Security check — about half of what Carrollo had been receiving.

“It would seem to smack the constitution in the face,” Wallen said of DOMA. “It hurts like hell.”

In Cheshire, Conn., retired school teacher Andrew Sorbo is in similar straits. His husband, Colin Atterbury, who died in May 2009, had been a federal employee at a nearby veteran’s hospital, and DOMA prevents Sorbo from receiving his VA pension.

The two men had entered into a civil union in Vermont in 2004, then married in Connecticut in January 2009 as Atterbury became ill with pancreatic cancer.

“80 percent of our household income disappeared when he died,” said Sorbo, 64. “It’s a betrayal of the ideals I used to teach my students … I know there isn’t justice for all.”

Though Connecticut is a relatively liberal state — with same-sex marriage now causing little controversy — Sorbo said many people he encounters are unfamiliar with DOMA.

“They have no idea how gay people are not getting the same rights they are,” he said. “It passes them by.”

He expects DOMA to be overturned eventually in court. “But they’ll never make it retroactive,” he said. “So for me it’s too late.”

Brian Sheerin says DOMA cost him and his husband, Ken Weissenberg, tens of thousands of dollars in extra taxes when they sold a home four years ago in order to move to Bedford, N.Y. A heterosexual married couple would have been able pocket $500,000 of the sale price before capital gains taxes kicked in, he said, but they were listed as “single” and taxed on proceeds over $250,000.

“That still sticks in my craw,” said Sheerin, 51, who married Weissenberg in Massachusetts in 2005.

He recalled returning with their two adopted daughters from a family vacation in Mexico to encounter a U.S. immigration officer who wanted Sheerin and Weissenberg to go through the entry point separately. The officer eventually relented, but the elder daughter took note.

“She asked, `Why did they do that?”’ Sheerin recalled.

DOMA’s future is uncertain. Democrats in Congress have introduced legislation to repeal it, but that effort is considered a long-shot while Republicans control the House. The pending court challenges could lead eventually to a Supreme Court decision on DOMA’s constitutionality — but that process, if it happens at all, could take several years.

DOMA’s foes are heartened by several recent opinion polls showing, for the first time, that more than half of Americans are ready to accept legal same-sex marriage. They hope this shift will reinforce the legal arguments against DOMA — notably that it creates an unwarranted exception to the historical federal policy of recognizing marriages of couples legally wed in the states.

“This exception denies thousands of legally married couples and their families the critical safety net that only marriage brings,” says Evan Wolfson, president of Freedom to Marry. “Perhaps worst of all, this is discrimination by the government itself, hurting families without helping anyone.”

One question is how DOMA will be defended in the pending court cases.

With the Obama administration now refusing to perform that task, the GOP leadership in the House says it will intervene to defend DOMA in court, but details remain sketchy. The Human Rights Campaign, a leading gay-rights group, has written to 200 of the country’s top law firms urging them not to take up the case on behalf of the House.

Joe Kapp, a Washington-based financial planner, said the uncertain status of DOMA has added to the challenges of advising his large gay clientele.

“The changes taking place are exciting, but there’s a lot of flux, and conflicting ways in which the administration is looking at relationships,” he said. “For now, couples probably should continue to assume that they will be recognized as strangers in the eyes of the law.”

Some activists are urging a more confrontational approach. A “Refuse to Lie” petition has been circulating on the Internet — promoted by various gay-rights groups — encouraging married gay couples to file joint federal tax returns in defiance of DOMA.

“The federal government’s refusal to recognize our marriages is blatant discrimination and we will not play along by lying on our tax returns and pretending we are single,” the petition says. “The government has chosen to discriminate and we choose to expose their bigotry by refusing to lie.”

At the bottom of the declaration is a disclaimer suggesting those who join the campaign consult an attorney for legal advice.

At least a half-dozen legal challenges of DOMA are pending, and the advocacy group Immigration Equality is laying the groundwork for an additional lawsuit focused on the plight of binational couples.

Meanwhile, several Democrats in Congress are urging federal immigration authorities to halt deportation cases affecting such couples.

“I recently applauded the president’s decision to order his Justice Department to stop defending DOMA in federal court,” said Rep. Jackie Speier, D-Calif. “In that same spirit, he should now order his Homeland Security Department to halt all deportations until we find the courage to kill this unconstitutional law.”

The administration already has taken some steps to ease DOMA’s impact, such as requiring executive branch agencies to extend benefits to same-sex domestic partners of federal employees.

On April 1, the Department of Health and Human Services advised states that they can henceforth treat gay couples — whether married or in domestic partnerships — similarly to straight couples with respect to benefit programs. For example, Medicaid has exemptions to avoid forcing a healthy spouse to give up the family home and retirement savings in order to qualify a spouse for long-term care; that protection will now be permissible for sex-same as well as heterosexual couples.

The incremental moves have been welcomed by activists, but don’t prevent impatience.

Said Jon Davidson, “Now that even the administration admits DOMA is unconstitutional, that has people wondering why it’s still there.”

—  John Wright

What’s Brewing: Key Prop 8 decision coming; marriage ban advances in Ind.; Gaga hatefest

Your weekday morning blend from Instant Tea:

1. The California Supreme Court is set to consider today whether it believes Prop 8 supporters have legal standing to defend the same-sex marriage ban in federal court, after state officials refused to do so. The U.S. 9th Circuit Court of Appeals, which is currently reviewing the case, has asked the California Supreme Court for an opinion on the matter. And the decision about standing could determine whether the Prop 8 case applies only to California or affects same-sex marriage throughout the country. In other words, this is kinda big.

2. If and when same-sex marriage bans are ultimately declared unconstitutional by the U.S. Supreme Court, Indiana apparently wants to be one of the states that was on the wrong side of history. Indiana’s newly Republican-dominated House voted overwhelmingly Tuesday to place a constitutional amendment on the ballot that would ban not only same-sex marriage, but also civil unions and domestic partnerships. The good news is the amendment can’t actually appear on the ballot until 2014 because it must first be approved by two separately elected legislatures. But in case it hadn’t dawned on you yet, those tea party nuts were lying to your face when they said they only care about fiscal issues.

3. Some gays are turning against Lady Gaga and rejecting their own so-called anthem, “Born This Way,” according to various media reports including this one. But the most amusing critique we’ve seen thus far comes from the Zeitgeisty Report, which suggests that Gaga HATES gay people: “Take for instance the very first part of the song where Gaga comes right out and accuses gay people of having paws instead of hands or feet. Yep, Lady Gaga officially thinks gay people are animals.”

—  John Wright

What’s Brewing: Chick-fil-A skewered; Lady Gaga v. Justin Bieber; Ind. marriage ban advances

Your weekday morning blend from Instant Tea:

1. Signs like the one above — an apparent reference to Chick-fil-A’s anti-gay ties — have cropped up on telephone poles around the West Virginia University campus, which is home to one of the chain’s franchises. We happen to think the signs are brilliant, but apparently they might be a little too heady for West Virginia, where police say they could represent a hate crime.

2. Our new anthem — Lady Gaga’s “Born This Way” — will be released two days early, on Friday, according to a tweet from Gaga on Monday. Smart move. No matter how good the song really is, it will undoubtedly seem utterly amazing compared to Friday’s other notable pop release — Justin Bieber’s 3D biopic Never Say Never.

3. An Indiana House panel voted 8-4 Monday to advance a proposed constitutional amendment that would ban same-sex marriage. Perhaps the lawmakers were swayed by the following testimony from Micah Clark of the American Family Association, who compared marriage to the Super Bowl: “If any two teams could place it would lose the significance. It wouldn’t be so super.” Does anyone else sense that these folks are getting really desperate?

—  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

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