Texas Republican seeking to intervene in marriage cases

Lamar Smith claims a ‘protectable interest’ in defending DOMA in Massachusetts lawsuits

Lisa Keen  |  Keen News Service lisakeen@mac.com

Claiming that the Obama Department of Justice is not doing enough to defend the federal Defense of Marriage Act, U.S. Rep. Lamar Smith, the Republican who represents Texas’ 21st district, has asked a federal court for permission to serve as an intervenor-defendant in two cases expected to come before the First Circuit U.S. Court of Appeals.

The Alliance Defense Fund announced Tuesday, Oct. 5,  that it had filed motions on behalf of Smith in the U.S. District Court for Boston, where Judge Joseph Tauro had ruled — in two cases — that one part of the federal Defense of Marriage Act is unconstitutional.

The Department of Justice still has until Oct. 12 and Health and Human Services has until Oct. 18 to give the court notice of whether the federal government intends to appeal those decisions.

In its Oct. 5 motions to intervene, the ADF claims the Department of Justice is mounting “no defense at all” for DOMA. The lawsuits in question challenge only DOMA Section 3, the section that limits the interpretation of “marriage” for any federal purpose to heterosexual couples.

“We should be strengthening and protecting marriage, not subjecting it to a hostile takeover through the courts,” said Dale Schowengerdt, legal counsel for the Alliance Defense Fund, in a press release. “If the Obama administration won’t defend marriage, we are ready and willing to do so.”

ADF claims the DOJ has failed to raise certain crucial arguments in defense of DOMA. For instance, it argues that DOJ should have noted that the U.S. Supreme Court’s “decision” in the 1972 Baker v. Nelson “was binding precedent that DOMA is constitutional.”

“Under the new administration, which strongly supports DOMA’s repeal, the DOJ traded these winning rationales for anemic arguments never recognized by any court in a challenge to DOMA or a similar state marriage definition,” states the ADF’s motion to intervene.

Actually, the Supreme Court did not issue a “decision” in Baker; it dismissed the appeal of a gay couple who had sought a marriage license in Minnesota.

Dismissing an appeal has more significance than simply refusing to hear the appeal. But, in dismissing the Baker appeal, the high court explained it was doing so because there was no “substantial federal question” presented by the case.

There is dispute within legal circles as to whether that dismissal means anything today.

And Mary Bonauto, civil rights director for Gay & Lesbian Advocates & Defenders that brought one of the DOMA lawsuits, said the lawsuits here are not — like Baker — about marriage.

Bonauto also said she wasn’t surprised to learn of ADF’s motion to intervene.

“The ADF tries to intervene in everything,” said Bonauto. “We’re just surprised it took this long.”

Bonauto said her organization would oppose Smith’s motion to intervene “on multiple grounds.”

The motions to intervene will be decided by Judge Tauro sometime during the next few weeks or so. Bonauto said she doesn’t imagine the motions will be granted if the federal government decides to appeal the two cases.
The ADF motion claims that Rep. Smith has a “protectable interest” in the outcome of these lawsuits because, as ranking minority member of the House Judiciary Committee, he has a duty to see that federal laws “are fully defended and that adverse decisions are appealed.”

The motion says Smith asked Attorney General Eric Holder, by letter, on Aug. 9, whether DOJ intends to appeal the DOMA cases. DOJ had not yet made a decision, notes ADF.

“[I]t is difficult to understand to DOJ’s indecision,” says ADF’s brief.

Attorneys for the HHS have until Tuesday, Oct. 12, to file notice that they intend to appeal the decision in the state’s case, Massachusetts v. HHS. DOJ attorneys have until Oct. 18 to file notice of appeal in GLAD’s case, Gill v. Office of Personnel Management. GLAD’s Bonauto said it is common for the appealing party to give the court notice of its appeal in the last couple of days remaining to do so.

Thus, the timing of ADF’s motion could have the political benefit of appearing to prod DOJ and HHS to file notice. But Arthur Leonard, a long-time legal scholar on LGBT cases, says it’s also not unusual for Smith to file the intervenor motion.

“There have been occasions in the past where members of Congress have sought to intervene in order to present what they think would be stronger arguments than the Justice Department is likely to present, especially when the administration that is defending the statute is different from the administration that signed it into law,” said Leonard.

“But,” he added, “to the extent this is about getting particular arguments before the court of appeals, I can’t imagine that an appeal of the DOMA case won’t attract plenty of amicus briefs that would make all the arguments that Rep. Smith would want to make.”

© 2010 Keen News Service

This article appeared in the Dallas Voice print edition October 08, 2010.

—  Kevin Thomas

What does Ken Mehlman have to say about his former boss, anti-gay Texas Rep. Lamar Smith?

Congressman Lamar Smith, R-Texas

If we could ask Ken Mehlman only one question, it might just be something about his one-time boss Lamar Smith.

Mehlman, the formerly anti-gay former RNC chair who recently came out as gay, served as Smith’s legislative director in the 1990s. Smith, meanwhile, seems to be vying for the title of No. 1 homophobe in Congress.

• In August, Smith sponsored a resolution to condemn U.S. District Judge Vaughn Walker’s decision declaring Proposition 8 unconstitutional.

• Also in August, Smith announced plans to introduce federal legislation that would define marriage as between one man and one woman.

• And now, Smith is asking a federal court to allow him to intervene in a case to help defend the Defense of Marriage Act, according to Keen News Service. The Alliance Defense Fund announced Tuesday it had filed motions on behalf of Smith asking to intervene in two cases in which a U.S. district judge in Massachusetts declared DOMA unconstitutional. The ADF argues on behalf of Smith that the Obama administration isn’t doing enough to defend the 1996 law, which some gay-rights activists don’t think the administration should be defending at all.

Interestingly, Smith’s Democratic opponent in November, Lainey Melnick, touts her opposition to DOMA prominently in the issues section of her website:

“It will be up to the [Supreme Court] to decide if the Defense of Marriage Act violates the Constitution by forcing the states to discriminate against same-sex couples,” Melnick writes. “This decision could uphold that federal encroachment over the areas where states have sovereign jurisdiction, such as with marriage, is unconstitutional and leaves marriage in the hands of the states. This question is to be answered by the courts, not the Congress. But I do believe that the US Constitution provides equal rights for all people, including same sex couples who want to get married, who want to own property, who want to make medical decisions, who want to share insurance expenses, who want to immigrate, who want to work, who want to serve in our military, and who deserve to live their lives free of discrimination.”

Unfortunately, Smith represents a pretty safe Republican district in Central Texas, and Melnick is facing some long odds. But who knows, maybe Smith’s one-time legislative director, Ken Mehlman, has something to tell us about him.

—  John Wright

BREAKING: Appeals court grants stay of Prop 8 ruling; gay marriages won’t resume Wednesday

A federal appeals court reportedly has granted a stay of Judge Vaughn Walker’s ruling declaring Proposition 8 unconstitutional. This means same-sex marriages will not resume in California on Wednesday, the deadline for Walker’s previous stay to expire. From the National Center for Lesbian Rights at about 6 p.m. Dallas time on Twitter: “BREAKING: 9th Cir grants stay but puts case on expedited schedule & orders parties to address whether #Prop8 proponents have standing.”

This is a developing story. Stay tuned to Instant Tea for updates.

UPDATE: Some early analysis of the appeals court’s decision courtesy of the Courage Campaign:

Three things:

First, and drastically most importantly, the Court granted the stay. Consequently the thousands of couples who were waiting for the day of equality will have to wait at least a few more months until December.

Second, the Court wants this case to be resolved quickly. Appellants’ opening brief is due in just a month and the hearing will happen on December 6th. This is lightning quick for a Federal Court of Appeals, and it’s a very good sign. The Court understands that this case is important, and it doesn’t want it to linger.

Third, the Court specifically orders the Prop 8 proponents to show why this case should not be dismissed for lack of standing. Here’s a discussion of the standing issue. This is very good news for us. It shows that the Court has serious doubts about whether the Appellants have standing. Even better, the Court is expressing an opinion that its inclination is that the case should be dismissed. That being said, the panel that issued this Order (the motions panel) is not the same panel that will hear that case on the merits. The merits panel will be selected shortly before December 6th and we don’t know the three judges who will be on the merits panel. But this is a very good sign that the appeal could be dismissed on the ground of standing alone.

UPDATE NO. 2: Here’s a statement from the American Foundation for Equal Rights, which is representing the same-sex couples challenging Prop 8:

Today the United States Court of Appeals for the Ninth Circuit set a highly expedited schedule for briefing and argument of proponents’ appeal from the district court’s August 4, 2010 decision striking down California’s Proposition 8 as an unconstitutional violation of the rights of gay and lesbian citizens to due process and equal protection of the law under the Fourteenth Amendment, and it granted proponents’ request to stay the judgment of the district court’s order while the appeal is decided. This means that although Californians who were denied equality by Proposition 8 cannot marry immediately, the Ninth Circuit, like the district court, will move swiftly to address and decide the merits of Plaintiffs’ claims on their merits. Today’s order can be found here:  http://www.equalrightsfoundation.org/legal-filings/9th-circuit-ruling-on-motion-for-stay-pending-appeal/

“We are very gratified that the Ninth Circuit has recognized the importance and pressing nature of this case and the need to resolve it as quickly as possible by issuing this extremely expedited briefing schedule. As Chief Judge Walker found, Proposition 8 harms gay and lesbian citizens each day it remains on the books.   We look forward to moving to the next stage of this case,” said Attorney Theodore B. Olson.

“Today’s order from the Ninth Circuit for an expedited hearing schedule ensures that we will triumph over Prop. 8 as quickly as possible. This case is about fundamental constitutional rights and we at the American Foundation for Equal Rights, our Plaintiffs and our attorneys are ready to take this case all the way through the appeals court and to the United States Supreme Court,” said Chad Griffin, Board President, American Foundation for Equal Rights.

UPDATE NO. 3: We’ve posted a full story here.

—  John Wright

Schwarzenegger, California AG Jerry Brown File Motions Urging Judge Walker to Allow Same-Sex Marriages to Resume

UPDATE: Governor Schwarzenegger wants same-sex marriages to resume immediately!

"The Republican governor filed his brief with U.S. District Court Judge Vaughn R. Walker before a Friday deadline to submit arguments on whether to continue a stay of Walker's decision against Proposition 8.
'The Administration believes the public interest is best served by permitting the Court's judgment to go into effect, thereby restoring the right of same-sex couples to marry in California,' wrote Kenneth C. Mennemeier, an attorney representing Schwarzenegger, in the brief. 'Doing so is consistent with California's long history of treating all people and their relationships with equal dignity and respect.'"

California Attorney General Jerry Brown has filed a motion opposing a stay of Judge Walker's decision striking down Proposition 8:

Brown "Brown told U.S. District Chief Judge Vaughn R. Walker that his historic ruling that overturned Proposition 8 probably will be upheld by higher courts. He said his office last year opposed a pretrial request to block Proposition 8 only because the legal and factual issues had not then been explored.

'That has now occurred,' Brown's office said. 'And while there is still the potential for limited administrative burdens should future marriages of same-sex couples be later declared invalid, these potential burdens are outweighed by this court’s conclusion, based on the overwhelming evidence, that Proposition 8 is unconstitutional.'

Gov. Arnold Schwarzenegger is also expected to oppose a hold on the ruling."

Written arguments were due today regarding the stay. Walker has said he'll decide after reviewing them.

Read Brown's motion, AFTER THE JUMP

2010.08.06 AG. Opp to Def Mtn for Stay


Towleroad News #gay

—  John Wright

Thanks to our gay district clerk, you can now access Dallas County court files online

Gary Fitzsimmons

Dallas County District Clerk Gary Fitzsimmons sends word that public access to court records is now available online.

“Until now, only docket information has been available to the public on the Dallas County website,” said Fitzsimmons. “Now, pending documents in seven District Civil courts, eight Felony courts, all Family court documents from 2003 to present, and one County Court at Law can be viewed. Documents from the remaining courts will be available by the end of the year.”

“We now have now one digital County Court at Law,” said County Clerk John Warren.

Fitzsimmons has made technological innovation a priority in his administration. He began by implementing an e-filing system that delivers original petitions, motions and other court documents electronically.

He said his office ensured that sensitive information, especially documents involving children, remains secure.

“Other types of information may also be limited through the use of a redaction request form consistent with the law we have provided on our website,” Fitzsimmons said.

—  David Taffet