Prop 8 supporters still want judge disqualified

Lawyers file brief claiming Vaughn Walker’s ruling striking down gay marriage ban should be invalidated because he is gay and in a relationship with a man

Walker.Vaughn

JUDGING THE JUDGE | In this July 8, 2009 file photo, Judge Vaughn Walker is seen in his chambers at the Phillip Burton Federal Building in San Francisco, Calif. Lawyers for the sponsors of California’s voter-approved same-sex marriage ban have filed briefs with the appeals court asking that Walker’s ruling striking down Prop 8 be invalidated because he is gay. (San Francisco Chronicle, Paul Chinn/Associated Press)

LISA LEFF  |  Associated Press
editor@dallasvoice.com

SAN FRANCISCO — The sponsors of California’s voter-approved same-sex marriage ban have asked a federal court to invalidate the ruling of the federal judge who struck it down, saying the judge should be disqualified because he did not divulge he was in a long-term relationship with another man.

Lawyers for the Proposition 8’s backers filed their open brief on the issue late Monday, Oct. 3, with the 9th U.S. Circuit Court of Appeals in San Francisco. They claim that another federal judge erred when he concluded U.S. Chief Judge Vaughn Walker’s relationship status was irrelevant to Walker’s ability to fairly preside over the trial on the measure’s constitutionality.

In their brief, they argue that Walker’s impartiality can be questioned because he is “similarly situated” to the plaintiffs who sued to overturn Proposition 8, two same-sex couples in established relationships. They also said that while Walker has not indicated if he and his partner wish to marry, research presented as evidence in the trial found that two-thirds of unmarried same-sex couples would tie the knot if they could.

“Given that Judge Walker was in a long-term, same-sex relationship throughout this case (and
for many years before the case commenced), he was, in Plaintiffs’ own words, ‘similarly situated to (Plaintiffs) for purposes of marriage,’” the lawyers wrote. “And it is entirely possible — indeed, it is quite likely, according to Plaintiffs themselves — that Judge Walker had an interest in marrying his partner and therefore stood in precisely the same shoes as the Plaintiffs before him.”

Walker’s successor, Chief Judge James Ware, rejected similar arguments in late August, after the coalition of religious conservative groups that qualified Proposition 8 for the November 2008 ballot made the first attempt in the nation to disqualify a sitting judge based on sexual orientation.

Ware said the presumption that Walker could not be unbiased was “as warrantless as the presumption that a female judge is incapable of being impartial in a case in which women seek legal relief.”

In an apparent response, the coalition’s attorneys wrote that they were not suggesting that gay or lesbian judges could never preside over cases involving gay rights questions.

“We know of no reason to believe, for example, that Judge Walker would have any personal interest in the outcome of litigation over, say, the constitutionality of the military’s ‘don’t ask, don’t tell’ policy,” they said. “Nor would there be any issue with a gay or lesbian judge hearing this case so long as a reasonable person, knowing all of the relevant facts and circumstances, would not have reason to believe that the judge has a current personal interest in marrying.”

The 9th Circuit already is reviewing whether Walker properly concluded the ban violates the rights of gay Californians and if Proposition 8’s sponsors were eligible to appeal his ruling once the state’s attorney general and governor declined to challenge it. A decision could come down at any time.

This article appeared in the Dallas Voice print edition October 7, 2011.

—  Kevin Thomas

BREAKING: Appeals court won’t let marriages resume in California while Prop 8 case is decided

A federal appeals court has denied a request to allow same-sex marriages to resume in California while the lawsuit challenging Proposition 8 is decided. Chris Geidner at Metro Weekly reports:

In a brief order issued today, the U.S. Court of Appeals for the Ninth Circuit denied the plaintiffs’ request to vacate its earlier stay order, which is keeping Proposition 8 in effect during the appeal of the Perry v. Brown challenge to the marriage amendment.

The order, from the three judges hearing the appeal:

“Having considered all of the factors set forth in Nken v. Holder, 129 S. Ct. 1749, 1756 (2009), and all of the facts and circumstances surrounding Plaintiffs’ motion to vacate the stay pending appeal, as well as the standard for vacatur set forth in Southeast Alaska Conservation Council v. U.S. Army Corps of Engineers, 472 F.3d 1097, 1101 (9th Cir. 2006), we deny Plaintiffs’ motion at this time.”

The plaintiffs had made the request of the Ninth Circuit to lift the stay shortly after the Department of Justice announced that it would no longer be defending Section 3 of the Defense of Marriage Act. The lawyers for the plaintiffs wrote, “The conclusion of the United States that  heightened scrutiny applies to classifications based on sexual  orientation is unquestionably correct. Proposition 8 cannot survive the  requirements of heightened scrutiny because its invidious discrimination  against gay men and lesbians could not conceivably further an important  government interest. Indeed, proponents have made no serious attempt  to defend Proposition 8 under that exacting standard.”

The ongoing consideration by the California Supreme Court of the certified question sent to it by the Ninth Circuit in the Perry case, which is delaying final resolution of the case by the Ninth Circuit, was an additional reason why the plaintiffs had requested that the stay be lifted. The California Supreme Court is considering whether the proponents of Proposition 8 have any “particularized interest” in the case or any legal right under California law to defend the proposition in court.

—  John Wright

BREAKING: Court allows military to continue enforcing ‘don’t ask don’t tell’ pending appeal

The U.S. military can continue enforcing “don’t ask don’t tell” pending the government’s appeal of a district judge’s decision declaring the policy unconstitutional.

With one justice dissenting, a three-judge panel of the U.S. Court of Appeals for the Ninth Circuit on Monday issued a stay of the district judge’s injunction barring the military from enforcing the policy.

The appeals court had already granted a temporary stay of the injunction, but Monday’s decision extends the stay for the duration of the appeal, which will take at least several months.

Chris Geidner at Metro Weekly reports:

“In addition to the fact that this case raises ‘serious legal questions,’” the court wrote, “there are three reasons that persuade us to grant a stay pending appeal.”

The reasons included that “Acts of Congress are presumptively constitutional,” that “‘judicial deference . . . is at its apogee’ when Congress legislates under its authority to raise and support armies” and that “the district court’s analysis and conclusions are arguably at odds with the decisions of at least four other Circuit Courts of Appeal.”

Dan Woods, an attorney for the plaintiffs in Log Cabin Republicans v. United States, issued the following statement:

“The court’s ruling is a disappointment not only to us, but also to all homosexual servicemembers who bravely put themselves in harm’s way so that we can all enjoy the constitutional rights and freedoms that they themselves are being denied. The decision only slows the day when military service will be available to all Americans, regardless of sexual orientation, who want nothing more than to serve their country honorably and patriotically. We will continue to fight on for the constitutional rights of these Americans and look forward to a favorable decision on the merits of the appeal. Meanwhile, we will discuss the court’s order with our client to determine whether we will ask for a review of the order by the U.S. Supreme Court.”

R. Clarke Cooper, executive director of Log Cabin, said in a statement, “Log Cabin Republicans is disappointed that ‘Don’t Ask, Don’t Tell’ will continue to burden our armed forces, undermine national security and limit the freedom of our men and women in uniform. Despite this temporary setback, Log Cabin remains confident that we will ultimately prevail on behalf of servicemembers’ constitutional rights. In the meantime, we urge President Obama to use his statutory stop-loss power to halt discharges under this discriminatory and wasteful policy. The president claims to want to see ‘Don’t Ask, Don’t Tell’ ended. It is time that he stop talking and start working to make a real difference for gay and lesbian Americans by pushing for repeal when Congress returns.”

—  John Wright

Pro-gay marriage attorneys may move to recover Prop. 8 court costs

Associated Press

SAN FRANCISCO — The lawyers who successfully sued to overturn California’s gay marriage ban are indicating they plan to recover attorney’s fees if the verdict is upheld on appeal.

In papers filed Tuesday, Aug. 17, attorneys for two same-sex couples and the city of San Francisco asked the court to extend a deadline for seeking reimbursement from the losing side. In this case, that would be the groups that put the ban on the 2008 ballot.

Sponsors of Proposition 8 defended the ban in court after California’s governor and attorney general refused to.

Lawyers familiar with scope of the case suggest the dollar amount would be in the millions.

Plaintiffs lawyer Theodore Boutrous Jr. says it makes sense to wait until the 9th U.S. Circuit Court of Appeals decides on the Aug. 4 ruling that overturned the ban.

—  John Wright

German court: Gay couples get inheritance equality

Associated Press

BERLIN — Germany’s highest court ruled Tuesday, Aug. 17 that gay couples in civil partnerships are entitled to benefit from the same favorable inheritance tax rules as married heterosexual couples.

The Federal Constitutional Court decided in favor of two homosexual plaintiffs who had each lost their partner and contested rules under which they had to pay inheritance tax as if they were distant relatives of the deceased.

The court found that there is no reason to discriminate against people in registered homosexual partnerships. Such unions have been possible in Germany since 2001 but legally fall short of marriage.

At present, a spouse pays an inheritance tax of between 7 and 30 percent on inheritances in excess of 560,000 euros ($718,000), but homosexual partners have to pay between 17 and 50 percent.

The court said that granting legally registered homosexual partnerships tax equality does not interfere with the government’s constitutional duty to protect and support marriage and family. The government must present legislation to end the discrepancy by the end of the year, it said.

“This is a good day for homosexuals in Germany,” said Volker Beck, a leading lawmaker from the opposition Greens who is openly gay.

A draft law already produced by the government aims to iron out the inheritance tax difference, but the supreme court went even further and demanded that the legislation be retroactive — applying to all cases that came up since civil partnerships were introduced in 2001.

—  John Wright

Prop 8 Plaintiffs Respond To Stay

From Ted Olson and the American Foundation for Equal Rights:

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.

“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.

Joe. My. God.

—  John Wright

Appeals court grants stay of Prop 8 ruling

LISA KEEN  |  Keen News Service

A three-judge panel of the 9th Circuit U.S. Court of Appeals issued an order Monday granting Yes on 8’s request for a stay of Judge Vaughn Walker’s ruling that Proposition 8 is unconstitutional. The appeals court panel also ordered, without being asked, that Yes on 8’s appeal of Walker’s ruling in Perry v. Schwarzenegger be addressed by the court on an expedited basis.

The panel said it would hear arguments on appeal during the week of Dec. 6, as well as arguments concerning whether Yes on 8 has legal standing to press the appeal.

The two-page order is a disappointment to many same-sex couples in California who were hoping that they would be able to obtain marriage licenses as soon as Judge Walker’s stay expired — at 5 p.m. Pacific time on Wednesday.

“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,” said Ted Olson, one of the lead attorneys for plaintiffs challenging Proposition 8.

Olson, one of the most prominent conservative attorneys in the country, launched the high-profile challenge of California’s voter-approved constitutional ban on same-sex marriage with liberal attorney icon David Boies. Walker, chief judge of the U.S. District Court for Northern California (San Francisco), heard three weeks of testimony by the plaintiffs and Proposition 8 supporters in January.

In a dramatic 136-page ruling on Aug. 4, Walker declared the same-sex marriage ban in the state constitution violates the U.S. Constitution’s guarantees of equal protection and due process. Walker agreed to stay — or delay enforcement — of his decision until Aug. 18, giving the 9th Circuit time to decide whether to grant a more extended appeal.

Evan Wolfson, who was a lead attorney on the first same-sex marriage case — in Hawaii in 1996 — called the 9th Circuit panel’s decision to continue Walker’s stay “disappointing.”

“But there are many twists in the road to justice,” said Wolfson, “and we are encouraged by the court’s setting a fast pace for the appeal, revealing that the judges understand how important a quick end to the exclusion from marriage is to gay couples, their loved ones, and all Americans who believe in equality under the law.”

The 9th Circuit panel includes two Clinton appointees — Judges Sidney Thomas and Michael Hawkins — and one Reagan appointee, Edward Leavey.

The panel set Sept. 17 as the date Yes on 8’s initial argument brief is due.

The response brief from the Ted Olson-David Boies legal team challenging Proposition 8 is due Oct. 18. And Yes on 8 may reply to plaintiffs’ brief by Nov. 1.

Monday’s order means the same-sex marriage ban will stay intact at least until December, when the 9th Circuit will hear arguments on both the issue of Yes on 8’s standing to appeal and, perhaps, on the merits of Walker’s decision.

Meanwhile, on the East Coast, where U.S. District Court Judge Joseph Tauro ruled — in two separate cases — July 9 that the ban on federal benefits to same-sex couples is unconstitutional, the clock is still ticking down the 60 days the U.S. Department of Justice has to appeal the decisions to the 1st Circuit U.S. Court of Appeals.

© 2010 by Keen News Service. All rights reserved.

—  John Wright

Plaintiffs, Governor Arnold and AG Brown ask Judge Walker to end the stay

From Karen Ocamb, the plaintiffs have asked Judge Walker to end the stay and allow marriages to proceed in California:

The legal team of David Boies and Ted Olson (pictured here with American Foundation for Equal Rights’ Chad Griffin) filed their motion asking Judge Walker to lift his stay on allowing Prop 8 to be struck down as unconstitutional.

And, via the San Francisco Chronicle, Arnold wants the same thing:

Gov. Arnold Schwarzenegger called today for the immediate restoration of same-sex marriage in California, urging the federal judge who overturned Proposition 8 to impose his ruling while the case moves through the higher courts.

Allowing gay and lesbian couples to marry “is consistent with California’s long history of treating all people and their relationships with equal dignity and respect,” said a legal brief written on behalf of Schwarzenegger.

Earlier this week, several people reminded me on Twitter that Governor Schwarzenegger vetoed marriage legislation — twice. Seems like he’s really trying to redeem himself or something.

Also, the Attorney General of California (and Democratic candidate for Governor) Jerry Brown:

Attorney General Jerry Brown, who is running for governor, also filed arguments Friday against extending a stay of Walker’s ruling. Referring to the ban on same-sex marriage, Brown’s filing stated that “the public interest weighs against its continued enforcement.”

If Judge Walker lifts the stay, marriages can begin. But, the other side will ask the Circuit Court for a stay.




AMERICAblog Gay

—  John Wright

Prop 8 Plaintiffs File Motion Opposing Judge Walker’s Stay

The American Foundation for Equal Rights, who represented the plaintiffs in the Prop 8 trial, filed the motion yesterday, the day it was due.

Governor Arnold Schwarzenegger and attorney general Jerry Brown filed their own motions yesterday as well.

Ob AFER issued the following statement calling for same-sex marriages in California to resume at once.

“The unconstitutionality of Proposition 8 has been proven beyond a doubt. Extending Prop. 8’s denial of fundamental constitutional rights represents a grave injustice. The time for the court’s ruling to go into effect is now. We welcome Governor Schwarzenegger’s and Attorney General Brown’s opposition of a stay after their thoughtful analysis of the evidence, the court’s ruling and the law.”

Read the full motion here.

The National Center for Lesbian Rights has published an explanation on the possible ways the stay could potentially play out:

"Judge Walker can decide whether to stay the decision for longer at any time. If he grants the motion to stay, same-sex couples will not be able to marry in California until after the appeal is finished. The Judge can also delay the decision for a short time until the Ninth Circuit appeals court decides whether they will order a stay. If Judge Walker denies the stay and permits his decision to take immediate effect, the Yes on 8 proponents can ask the Ninth Circuit appeals court to order an emergency stay. Several counties have announced that, if Judge Walker lifts the stay, they are ready to begin issuing licenses and performing civil ceremonies for same-sex couples."

Meanwhile, David Boies, one half of the team who repped the prop 8 plaintiffs, told a large crowd in San Francisco that he believes it is a "dead certainty" the case will end up in the hands of the US Supreme Court. Watch a clip of him speak, AFTER THE JUMP.

Finally, Equality California is calling on everyone to sign their electronic petition that urges Meg Whitman and Steve Cooley, who are running for the CA governorship and AG positions respectively, to state that they will refuse to defend Prop 8 in court if they are ever elected.

Sign it here.


Towleroad News #gay

—  John Wright

Wisconsin high court upholds marriage ban

The Wisconsin Supreme Court this a.m. upheld the state’s same-sex marriage ban in a unanimous decision. A lawsuit alleged that the referendum on the state’s 2006 constitutional amendment was improper because it dealt with both marriage and civil unions:

The court rejected a lawsuit that claimed the amendment violated a rule that limits referendum questions to a single subject. The lawsuit, filed by a voter opposed to the amendment, argued that gay marriage and civil unions were two different subjects.

Justice Michael Gableman says both sentences “carry out the same general purpose of preserving the legal status of marriage in Wisconsin as between only one man and one woman.”

The plaintiffs in the Wisconsin case argued that some voters may oppose same-sex marriage but support civil unions. Therefore, they said, the referendum violated their free speech rights.

Texas, of course, has a similarly worded amendment. The 2005 Texas amendment bans both same-sex marriage and “any legal status identical or similar to marriage.”

—  John Wright