Oral arguments ‘promising’ in Prop 8 case

Judges grill attorneys from both sides on issue of standing, merits of federal case challenging California’s same-sex marriage ban

Lisa Keen |  Keen News Service

SAN FRANCISCO — Famed attorney Ted Olson told a 9th Circuit U.S. Court of Appeals panel on Monday, Dec. 6 that the reason proponents of Proposition 8 have put forth to justify their ban on same-sex marriage is “nonsense.”

That reason, said Olson, reading from a page in the brief filed by attorneys for the Yes on 8 coalition, was that same-sex marriage “will make children prematurely preoccupied with issues of sexuality.”

“If believed,” said Olson, “that would justify the banning of comic books, television, video games, and even conversations between children.”

And it isn’t exactly the reason Yes on 8 proffered during their successful 2008 campaign to amend the state constitution to ban same-sex marriage. Back then, the primary reason, noted Olson, was “protecting children” from the notion that marriage between same-sex couples was OK.

So, what should the court consider as the reason behind denying same-sex couples the right to marry, asked Judge Michael Hawkins.

“Should we look just at the record in the district court?” he asked, or should we “imagine whether there is any conceivable rational basis” to ban gays from marriage?

Olson urged the court not to use its own imagination but to look at the reasons proffered by the Yes on 8 proponents and determine whether they “make sense” and whether they are “motivated by fear” or a dislike of gay people.

“Protecting our children,” said Olson, “is not a rational basis. It’s based on the idea there’s something wrong with” gay people.

Both Olson and his legal counterpart, Charles Cooper, argued with greater passion and animation during Monday’s argument before the federal appeals court than they had in January and June before U.S. District Court Judge Vaughn Walker. It was Walker’s ruling in August — that California’s ban on same-sex marriage violates the U.S. Constitution — that brought them to the appeals court in San Francisco on Monday. Unlike at the district court trial, where the U.S. Supreme Court barred any television or web broadcast, the appeals proceedings were carried live on national television by CSPAN and several California stations. Demonstrators crowded outside the federal building in San Francisco under the watchful eye of federal protection service officers. And interested observers and journalists packed the courtroom and watched broadcasts all over the country.

The three judges on the appeallate panel vigorously challenged each side’s arguments on both matters before the court — Yes on 8 and Imperial County’s legal qualification (standing) to appeal, and the validity of Walker’s declaration that Proposition 8 violates the equal protection and due process clauses of the 14th Amendment to the U.S. Constitution.

Judge N. Randy Smith, an alum of the Mormon-owned Brigham Young University, leveled hard questions at Cooper over Yes on 8’s claim to have legal standing to press the appeal. Then he pitched equally hard questions to Olson’s comrade David Boies, about the “problem” created for the court by the fact that neither the governor nor attorney general appealed the district court decision themselves. Even though neither has the power to veto an initiative, said Smith, they both nullified the initiative by not appealing it.

Boies tried to make the point that Gov. Arnold Schwarzenegger and Attorney General Jerry Brown made their decisions not to appeal after Judge Walker declared the initiative to be unconstitutional.

Judge Stephen Reinhardt, widely perceived to be a staunch liberal, seemed to agree with Smith, saying the governor and attorney general’s refusal to appeal the district court decision “does not seem to be consistent” with the state’s initiative system. And should the court find that Yes on 8 and Imperial County both lack the legal qualifications to appeal, the judges said, the appeals court has no cause to rule on the merits of the dispute.

Boies argued that the concern about what the governor and attorney general did was a “different issue” than standing. And on the issue of standing, said Boies, Yes on 8 and Imperial County have no standing to bring the appeal, simply because they can’t meet the standard of demonstrating a real injury from the district court’s decision.

It was not an easy sell. Hawkins expressed frustration that the court might not be able to render a decision on the merits “so it’s clear, in California, who has the right to marry and who doesn’t.”

Yes on 8 attorney Charles Cooper had argued that, because the California Supreme Court had, in an earlier, related court proceeding given Yes on 8 the right to intervene in the Perry v. Schwarzenegger case to defend Proposition 8, it intended to convey standing, too. By the end of the first hour of the proceeding — which was devoted to standing — the panel seemed inclined to ask the California Supreme Court to certify whether it intended Yes on 8 to have standing.

The panel seemed equally uncomfortable with the effort by a deputy clerk of Imperial County, Isabella Vargas, to seek standing to appeal Walker’s decision. The judges, particularly Hawkins, pointedly and repeatedly asked why Imperial County’s deputy clerk was seeking the status, and no explanation was given as to why the county clerk did not.

Robert Tyler, an attorney with a religious advocacy legal firm representing Vargas and Imperial County pro bono, evaded the answer to that question both in and out of the courtroom. At a press conference following arguments, he claimed the answer was a matter of attorney-client privilege.

The three judges were equally tough in questions about the merits of Judge Walker’s decision. As Cooper attempted to read from his prepared statement, Judge Hawkins interrupted almost immediately to ask him whether voters have the right to re-institute segregation in public schools.

“No,” said Cooper.

“Why not?” asked Hawkins.

“Because it would be inconsistent with the U.S. Constitution,” said Cooper.

“As interpreted by the U.S. Supreme Court,” interjected Hawkins.

“Yes,” conceded Cooper.

But in 1870, the U.S. Supreme Court probably wouldn’t have interpreted the constitution to forbid segregation? asked Hawkins.

Cooper conceded that was probably true.

“Well, how is this different?” asked Hawkins.

Judge Smith challenged Cooper using the Loving v. Virginia ruling by the U.S. Supreme Court that said states couldn’t prohibit interracial marriage. He did so by noting that Cooper was arguing that the Supreme Court had already ruled on the right of states to proscribe same-sex marriage in Baker v. Nelson. The high court, in 1972, 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 an 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. But Cooper, and others, have tried to make a case that the Baker action is precedent, and that it governs attempts by other states to ban same-sex marriages.

If Baker was precedent, said Smith, then why couldn’t states ban interracial marriage, too?

Cooper had to concede the right of states to decide who can marry is “not an absolute right” and that their right to do so “is limited by the restrictions of the U.S. Constitution.”

When Cooper tried to argue that society has a rational interest in the creation of children and in promoting responsible procreation to ensure that children are adequately cared for, Judge Reinhardt suggested that might be a “good argument for prohibiting divorce.”

Judge Smith jumped in to challenge Cooper on this point, too. He noted that California domestic partnership laws provide same-sex couples with all the same benefits and rights to marriage, including those involving child-rearing. What is the rational reason for denying same-sex couples the designation of the word marriage, he wondered.

Judge Hawkins challenged Cooper to explain how California’s same-sex marriage ban is different from Colorado’s Amendment 2, which said no law could prohibit discrimination based on sexual orientation. The Supreme Court struck down Amendment 2 in Romer v. Evans, saying the only reason for the law was animus against gay people and that laws may not be justified by mere animus.

Cooper argued that Amendment 2 had been a “sweeping” denial of protections to gay people, in banking, employment, housing, commercial transactions, and many other areas of life. Proposition 8, he said, is focused just on marriage. And, in marriage, said Cooper, society had an interest to protect unrelated to animus against gay people, and that interest is promoting responsible procreation.

Therese Stewart, the openly gay chief deputy city attorney for San Francisco, tackled that argument head-on, by noting that same-sex couples “do procreate — not in same way [as heterosexual couples], but they do procreate.”

Gay legal activists seemed pleased with how the arguments went Monday.

Evan Wolfson, head of the national Freedom to Marriage Project, said that, overall, he thinks “it looks promising, both on standing and on the merits.”

Shannon Minter, senior counsel for the National Center for Lesbian Rights, agreed, saying he was especially encouraged that “at least two of the judges seemed highly critical of Charles Cooper’s claim on behalf of the proponents that Prop 8 could be justified based on arguments relating to procreation.” And Ted Olson, he said, “was particularly eloquent and urged the Court to reach the broad question of whether same-sex couples have a fundamental right to marry.”

Jenny Pizer, head of Lambda Legal Defense’s Marriage Project, said she wouldn’t be surprised if the panel’s eventual ruling includes “multiple decisions” on how they reached the same outcome “with different reasonings.”

“And if they conclude Prop 8 is invalid while disagreeing about the details of why,” said Pizer, “that may be just fine.”

The panel is expected to render its decision on both the standing issue and the constitutionality of Proposition 8 within a few months. Boies speculated during a post-argument press conference that the earliest the panel would likely render a decision is early next year and the earliest the case might be heard by the Supreme Court — during its almost inevitable appeal — would be 2012.

© 2010 by Keen News Service. All rights reserved.

—  John Wright

Watch: Hate Group Leader Tony Perkins Spews ‘DADT’ Nonsense on MSNBC

Msnbc_perkins

Hate group leader Tony Perkins (of the Family Research Council) and Sgt. Brian Fricke of the Servicemembers Legal Defense Network, appeared on MSNBC today to discuss 'DADT' repeal and the Pentagon report.

Perkins does his best to discredit the opinions of Mullen and Gates, and cites the FRC's own "scientific survey" (The survey of a designated hate group) that 30% of the Armed Forces are ready to leave if gays are allowed to serve openly.

Why are MSNBC and CNN 

Also, last night on AC360 Richard Socarides faced off against

Watch, AFTER THE JUMP



Towleroad News #gay

—  admin

Watch: Rep. Louie Gohmert Assaults Anderson Cooper with ‘Terror Baby’ Nonsense

Terror-babies

Texas state Rep. Debbie Riddle and Rep. Louie Gohmert (R-TX) are convinced that foreign women are coming to the U.S. to have babies in order to get them citizenship, so the babies can then be trained as terrorists against the U.S. Neither have any solid evidence, but that doesn't stop them from being very, very convinced, and Anderson Cooper bears the brunt of their wingnuttery.

Watch, AFTER THE JUMP


Towleroad News #gay

—  John Wright

Will Phillips speaks at Pride parade

Will Phillips may be only 10 years old, but he is a young man with a lot of courage and a unique voice — and a lot of fans and supporters in his hometown of Fayetteville, Ark.

When it was first announced last week that Will had been named grand marshal of the Northwest Arkansas Gay Pride Parade, right-winger Tim Wildmon, president of the American Family Association, claimed that it was “a form of child abuse” and suggested that Will had been “brainwashed” into supporting LGBT equality, and that he was doing nothing more than “parroting the nonsense he has been told by manipulative adults.”

Well, watch this video of Will speaking at the parade in Fayetteville, and it’s pretty obvious that he definitely has a mind of his own, and that he is perfectly capable of forming his own well-reasoned opinions.

—  admin

DART accused of transphobia

Judge reversed order after transit agency fought longtime employee’s gender-marker change last year

John Wright | News Editor
wright@dallasvoice.com

TRANS FRIENDLY? | Judge Lynn Cherry, right, is shown alongside drag performer Chanel during Stonewall Democrats’ 2008 holiday party at the Round-Up Saloon. A few months later, Cherry ruled against a transgender DART employee and overturned a gender-marker change. (John Wright/Dallas Voice)

DART stands accused of bigotry and transphobia after attorneys for the local transit agency intervened in family court last year to challenge a gender-marker change granted to an employee.

According to court records, a transgender DART employee obtained a court order in February 2009 directing all state agencies to correct their records by changing her gender-marker from male to female, including on her birth certificate.

As Dallas Voice reported last week, many Dallas County judges have been routinely granting gender-marker changes to transgender people who meet set criteria — including documentation from licensed medical personnel — since the Democratic sweep of 2006.

The DART employee, who’s name is being withheld to protect her anonymity, later presented the court order to the transit agency’s human resources department and requested that her personnel records be changed to reflect her new gender.

But DART’s attorneys objected to the gender-marker change and responded by filing a motion seeking a rehearing in court. DART’s objections prompted 301st Family District Court Judge Lynn Cherry to reverse her order granting the gender-marker change.

“Where does this stop when an employer can start interfering with your personal life and family law decisions?” said longtime local transgender activist Pamela Curry, a friend of the DART employee who brought the case to the attention of Dallas Voice. “She was devastated. This should be a serious concern to a lot of people — everybody — and I just think this story needs to be told.”

Judge Cherry, who received Stonewall Democrats of Dallas’ Pink Pump Award for her support of the group last year, didn’t respond to messages seeking comment this week.

Morgan Lyons, a spokesman for DART, noted that Cherry reversed her order before the agency actually filed its motion for a rehearing. However, Curry alleges that DART’s attorneys met with Cherry privately and pressured her into reversing the order.

As is common with gender-marker changes, the case file has been sealed, but Dallas Voice obtained copies of some of the court documents from Curry.

In their motion for a rehearing, DART attorneys Harold R. McKeever and Hyattye Simmons argued that Texas law grants registrars, not judges, the authority to amend birth certificates. They also argued that birth certificates could be amended only if they were inaccurate at the time of birth.

“It’s not a DART issue, it’s a point of law,” Lyons told Dallas Voice this week, in response to the allegations of bigotry. “The lawyers concluded that the birth certificate could not be altered by law, unless there was a mistake made when the birth certificate was completed, and again, the judge changed the order before we even wound up going into court with it.”

Asked about DART’s LGBT-related employment policies, Lyons said the agency’s nondiscrimination policy includes sexual orientation but not gender identity/expression. The agency, which is governed by representatives from Dallas and numerous suburbs, also doesn’t offer benefits to the domestic partners of employees.

Lyons didn’t respond to other allegations made by Curry, including that the agency has fought the employee’s transition from male to female at every step of the way.

Curry, who helped the employee file her pro se petition for a gender-marker change, said the employee has worked for DART for more than 20 years and has an outstanding performance record.

The employee began to come out as transgender in 2003 and had gender reassignment surgery more than three years ago, Curry said. Curry said DART supervisors have at various times told the employee that she couldn’t have long hair, couldn’t wear skirts to work and couldn’t use women’s restrooms at work.

The employee has responded by showing up at work in her uniform so she doesn’t have to change and using public restrooms on her bus route, Curry said.

Supervisors have also told the employee she can’t talk to the media and can’t join political groups, such as Stonewall Democrats, Curry said.

“She’s intimidated and she’s scared,” Curry said. “One supervisor even suggested to her that if she doesn’t lay off it, they will mess up her retirement.”

Elaine Mosher, a Dallas attorney who’s familiar with the case, also questioned why DART intervened. Mosher didn’t represent the employee in the case but has handled gender-marker changes for other clients.

Mosher said the employee’s gender doesn’t have any bearing on her ability to do her job at DART.

“My argument in any gender marker matter is, the birth certificate was wrong, that’s why they had to go through the transition surgery, in essence to put them in the correct gender,” Mosher said. “All I can tell you is that it seems strange to me that DART would care one way or another what the gender marker of anybody that works for them is.”

Moster added that she believes someone at DART may have been “freaked out” by the employee’s transition from male to female and developed a “vendetta” against her.

“I wish I had a good explanation for why [DART got involved] other than the fact that I know there are people out there who are utterly blind and prejudiced for no other reason than they are,” Mosher said. “I compare it to some of the nonsense African-Americans had to live through in the ’60s.”

Mosher also said she’s “very surprised” that Cherry reversed the order granting the gender marker change.

Erin Moore, president of Stonewall Democrats, said she’s heard “bits and pieces” of the story but isn’t sure of all the facts.

Moore said in response to her questions about the case, Cherry told her she couldn’t talk about it because it’s still within the timeframe for a possible appeal.

“Lynn is a longtime supporter of Stonewall and I would think she would be fair in the case,” Moore said. “I’m confident she’s an ally to this community.”

This article appeared in the Dallas Voice print edition February 19, 2010.

—  admin