Texas among states ‘Least Likely to Legalize Gay Marriage Anytime Soon’

While a record number of Texas voters support some form of relationship recognition for same-sex couples, the Lone Star State is still viewed as one of the last states that will legalize it.

A Huffington Post article ranks the nine states that are the least likely to legalize same-sex marriage in the near future based on the percentage of voters who favored a state constitutional ban.

Mississippi was No. 1 with 86 percent of voters who supported the ban, followed by Alabama, Tennessee, Louisiana, South Carolina, Georgia, Oklahoma, Texas and Arkansas.

Texas passed its constitutional ban on same-sex marriage and civil unions in 2005 with 76 percent of voter support.

Austin’s KUT News recently examined if marriage equality could come to Texas, which could happen depending on how the U.S. Supreme Court’s rules in the Proposition 8 case that challenges California’s constitutional amendment banning same-sex marriage.

LGBT experts believe that if the Supreme Court ruling doesn’t affect Texas, it could take a decade for the high court to hear another case that would ultimately force Texas to recognize same-sex marriages.

—  Dallasvoice

Uptown Players announces lineup for second Dallas Pride Performing Arts Festival

Last year, Uptown Players launched its first-ever Pride Performing Arts Festival to coincide with the Dallas Pride celebration. It was a hit, and the festival is coming back for a 10-day series of gay plays and performances.

Already announced will be the regional premiere of 8, the play by Oscar winner Dustin Lance Black based on the actual transcript of the challenge to California’s Proposition 8 law, banning same-sex marriage. Rene Moreno will direct the staged reading in the Kalita Humphreys main stage. (Sept. 6.)

Also on the main stage will be Songs for a New World, a song cycle by composer Jason Robert Brown, directed by Bruce Coleman and music directed by Kevin Gunther. (Sept. 9, 11 and 15.) [EDITOR’S NOTE: Uptown Players has announced that Songs for a New World has been removed from the schedule.]

The remaining shows will all be performed in Frank’s Place, the upstairs venue at the Kalita. Among the lineup:

Speech & Debate, about three teenaged misfits united by a town sex scandal. (Sept. 7, 8 and 10.)

The Madness of Lady Bright, starring Larry Randolph as a drag queen slowly going insane; it played last year at the Festival of Independent Theatres, winning Randolph awards for his performance. (Sept. 8, 9 and 15.)

Still Consummate, in which master comedienne Marisa Diotalevi, pictured, revisits her award-winning one-person show The Consummate Woman. It will be on a double bill with Paul J. Williams’ standup act Triple Crown Queen, about growing up gay. (Sept. 8, 11 and 14.)

A-GAYS, Stillwater, Oklahoma. Young performance artist John Michael Colgin reprises his one-man show about being gay at OSU, and the ptifalls of finding a boyfriend. (Sept. 8, 9 and 15.)

Why Am I Not Gay. Straight guy Jason Kane loves musical theater and looks like a bear on the prowl at a Hidden Door beer bush, but — gasp! — prefers girls. He pokes fun at the stereotypes of gay folks, and being on the other side of them. (Sept. 9, 12 and 15.)

I Google Myself, which played a few years back at WaterTower’s Out of the Loop Fringe Festival, will return. This comedy is about a man who finds he shares the same name with a porn star. Kookiness ensures. (Sept. 9, 13 and 15.)

—  Arnold Wayne Jones

BREAKING: Appeals court won’t rehear Prop 8

Full 9th Circuit opts not to reconsider panel’s ruling that Calif. marriage ban is unconstitutional; case now likely headed for Supreme Court

LISA KEEN  |  Keen News Servic

A glimmer of politics showed through Tuesday when the full 9th U.S. Circuit Court of Appeals declined a request from supporters of California’s ban on same-sex marriage to review a three-judge panel’s ruling that Proposition 8 is unconstitutional.

In a dissent from the order refusing to have the full 9th Circuit hear the landmark Perry v. Brown case, three judges signed onto a dissent, noting that just a few weeks ago, President Barack Obama had “ignited a media firestorm by announcing that he supports same-sex marriage as a policy matter.” The three said the refusal to review the circuit panel’s decision “silenced” President Obama’s suggestion that the nation continue its “conversation” about same-sex marriage “in a respectful way.”

All three dissenters were appointees of Republican presidents.

But politics or not, the refusal to give Perry v. Brown full circuit court review is a major victory for supporters of marriage equality and means almost certainly that the “final chapter” in the historic litigation can now begin, said Chad Griffin, co-founder of the American Foundation for Equal Rights, which organized and funded the lawsuit.

Attorneys for Proposition 8 supporters said they will now file a petition to the U.S. Supreme Court to review the 9th Circuit decisions. Ted Olson, a lead attorney for the gay couples in Perry, said that, even if the Supreme Court refuses to hear that appeal, the litigation would be a “complete victory” for the plaintiff couples.

One looming question for the Perry case is whether the Supreme Court, if it accepts the case, would review the 9th Circuit panel’s very narrow reasoning to strike down Proposition 8 — or the federal district court’s more sweeping reasoning concerning equal protection, due process and the fundamental right to marry. While Olson said upholding a narrow reasoning might still affect same-sex marriage in some states beyond California, upholding the broader reasoning could affect every state.

With last week’s 1st Circuit decision striking a core section of the Defense of Marriage Act also heading to the nation’s highest court, it is now likely the Supreme Court will have two major same-sex marriage cases on its docket in October.

The 9th Circuit case, if accepted, could ask whether states can take away the right to marry from same-sex couples or whether same-sex couples have a fundamental right to marriage and to be treated equally under marriage laws. The 1st Circuit case, if accepted, would ask whether the federal government can refuse to recognize marriages licensed by states to same-sex couples.

David Boies, the other lead attorney for the Perry couples, said that, while the questions in the two cases are “distinct,” the issues are closely related and could — if both are accepted — be heard very close together.

The three-paragraph order June 5 stated that the request for a full court review “failed to receive a majority of the votes” of active judges. It also noted that the order would be stayed for 90 days to enable proponents of Prop 8 to file an appeal to the U.S. Supreme Court.

The dissenting judges did not mince words in their three-paragraph dissent. They said the circuit panel’s 2-1 decision striking down Prop 8 was a “gross misapplication” of the U.S. Supreme Court’s decision in Romer v. Evans. In that 1996 case, the Supreme Court said states could not pass laws that excluded gays from protection based on animus against the group.

The dissenters said refusing to give full 9th Circuit review to Perry v. Brown means the Ninth Circuit judges “have now declared that animus must have been the only conceivable motivation for a sovereign state to have remained committed to a definition of marriage that has existed for millennia.”

Proponents of Prop 8, known as Yes on 8, filed the appeal seeking review by the full 9th Circuit, asking it to overturn a decision by the panel in February. That panel decision found that California’s ban on same-sex marriage violates the U.S. Constitution by stripping from same-sex couples a right they had (to marry) prior to passage of Prop 8. In order for a limited full court review to have been granted, at least 14 of the circuit’s 26 active judges would have had to say another review is warranted.

The Perry v. Brown lawsuit is led by famed conservative attorney Olson and pre-eminent liberal attorney David Boies, and organized and funded by AFER.

In the case, two same-sex couples sued the state after being denied marriage licenses after the voter-approved constitutional ban on same-sex marriage went into effect in November 2008.

U.S. District Court Judge Vaughn Walker ruled, in August 2010, that banning same-sex couples from obtaining marriage licenses violates the U.S. Constitution’s guarantees of equal protection and due process. He agreed to delay enforcement of the decision, pending an appeal by Yes on 8 attorneys to the 9th Circuit.

In February 2012, a three-judge panel of the 9th Circuit, in a 2-1 vote, upheld Walker’s decision but on much more narrow grounds. The panel majority — Judges Stephen Reinhardt and Michael Hawkins — said Proposition 8 improperly removed from a group of citizens (gays) a right they already enjoyed (marriage) without sufficient justification.

Reinhardt and Hawkins submitted a paragraph with the June 5 refusal order, saying they were “puzzled” by their dissenting colleagues’ “unusual reliance on the President’s views regarding the Constitution, especially as the President did not discuss the narrow issue that we decided in our opinion.”

“We,” said Reinhardt and Hawkins, “held only that under the particular circumstances relating to California’s Proposition 8, that measure was invalid. In line with the rules governing judicial resolution of constitutional issues, we did not resolve the fundamental question that both sides asked us to: whether the Constitution prohibits the states from banning same-sex marriage. That question,” they said, “may be decided in the near future, but if so, it should be in some other case, at some other time.”

The “particular circumstances” they referred to were that the California Supreme Court had ruled, in May 2008, that the state Constitution required that same-sex couples be able to obtain marriage licenses the same as straight couples. Thousands of couples did begin obtaining marriage licenses, but, in November of that year, voters approved Proposition 8, amending the state constitution to explicitly ban the recognition of same-sex marriage.

While attorneys and activists uniformly called the Feb. 7 panel decision a major victory, they acknowledged that the decision stopped short of saying that same-sex partners, like straight partners, have a “fundamental right to marry.” Instead, the decision said Prop 8 deprived same-sex partners only of the “right to use the designation of ‘marriage.’” If it had ruled same-sex couples had a fundamental right to marry, said Lambda Legal Defense’s legal director Jon Davidson, “the marriage laws of 44 states would have been cast into doubt….” And by rendering such a relatively narrow ruling, said Davidson and others, the panel reduced the likelihood the U.S. Supreme Court would take the case.

“The fundamental right to marry, as protected by the US Constitution,” said Williams Institute legal scholar Jenny Pizer, “has to have the same contours throughout the country. So a decision concluding that same-sex couples have the same fundamental right as different-sex couples would call into question all the marriage restrictions states currently impose.”

© 2012 by Keen News Service. All rights reserved.

—  John Wright

BREAKING: Appeals court strikes down Prop 8

Experts say ruling narrowly crafted to avoid Supreme Court review

LISA KEEN  |  Keen News Service

Calling Proposition 8 “remarkably similar” to Colorado’s anti-gay Amendment 2 in 1992, a divided federal appeals court panel in San Francisco ruled today that California’s same-sex marriage ban violates the federal Constitution.

It was, noted many attorneys working on the issue of equal rights for LGBT people, the first time a federal appeals court has issued a decision in favor of marriage equality for same-sex couples. And it was, as lead attorney Ted Olson put it, “a very significant milepost on the way to equality.”

In a 2 to 1 decision in Perry v. Brown, the 9th U.S. Circuit Court of Appeals panel noted that the rights at issue in this landmark case concerning the ability of voters to withdraw the right to marry from same-sex couples in California was essentially the same as the ability of voters in Colorado, in 1996, to withdraw from LGBT people the protection of laws prohibiting discrimination.

“Laws may be repealed and new rights taken away if they have had unintended consequences or if there is some conceivable affirmative good that revocation would produce,” noted the majority, “but new rights may not be stripped away solely because they are new.”

The California Supreme Court had ruled, in May 2008, that the state constitution required that same-sex couples be able to obtain marriage licenses the same as straight couples. But in November of that year, voters approved Proposition 8, an initiative that amended the state constitution to explicitly ban the recognition of same-sex marriage.

Quoting from the U.S. Supreme Court’s 2003 decision, Lawrence v. Texas, striking down laws barring sexual relations between same-sex partners, and referring to the 1967 U.S. Supreme Court decision, Loving v. Virginia, striking down bans on interracial marriage, the appeals panel noted that the “fact that the governing majority in a State has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice; neither history nor tradition could save a law prohibiting miscegenation from constitutional attack.”

Olson and co-lead attorney David Boies said the Ninth Circuit panel’s heavy reliance on decisions from the U.S. Supreme Court makes the panel’s ruling “extremely strong.”

“There’s a high likelihood,” said Olson, in an afternoon phone conference with reports, “that the Supreme Court will find [Perry v. Brown] very hard to ignore.”

Olson and Boies made clear that they have always considered the case to be one headed for the U.S. Supreme Court. They said the Yes on 8 coalition which successfully campaigned for Proposition 8 has 14 days in which to announce whether it is appealing the decision and to where. The Yes on 8 coalition could ask for appeal to the full 9th Circuit bench or go straight to the U.S. Supreme Court. Until Feb. 28, said Olson, a stay on the 9th Circuit panel’s decision is in effect.

Olson said that, while he expects Yes on 8 to seek an extension of the stay beyond Feb. 28, his legal team would oppose that extension.

The highly anticipated ruling also rejected a motion from Yes on 8 proponents to vacate the district court ruling of former Chief Judge Vaughn Walker because Walker had not disclosed, prior to presiding over Perry v. Brown (known as Perry v. Schwarzenegger at the time), that he was in a long-term relationship with a man.

And while attorneys and activists uniformly called today’s decision a major victory, the appeals court panel did stop short of saying that same-sex partners, like straight partners, have a “fundamental right to marry.” Instead, it said Proposition 8 deprived same-sex partners only of the “right to use the designation of ‘marriage.’”

“We therefore need not and do not consider whether same-sex couples have a fundamental right to marry, or whether states that fail to afford the right to marry to gays and lesbians must do so.”

“If the 9th Circuit had ruled that the fundamental right to marry protected by the Constitution is shared equally by same-sex couples,” said Lambda Legal Defense’s legal director Jon Davidson, “the marriage laws of 44 states would have been cast into doubt…” Such a broad ruling, he said, “in all likelihood would have resulted in Supreme Court review of the decision.”

“The fundamental right to marry, as protected by the US Constitution,” said Williams Institute legal scholar Jenny Pizer, “has to have the same contours throughout the country. So a decision concluding that same-sex couples have the same fundamental right as different-sex couples would call into question all the marriage restrictions states currently impose.”

An attorney on the Olson-Boies team said they think the 9th Circuit majority wanted to write as narrow decision as possible and minimize the likelihood that the Supreme Court would review the decision.

And, like the U.S. Supreme Court in the Colorado case, the 9th Circuit panel declined to examine whether it should apply the most stringent form of scrutiny — heightened scrutiny — to laws disfavoring gays and lesbians. Proposition 8, like Amendment 2, said the majority, failed to satisfy even the simplest rational level of review.

Walker, in his August 2010 decision, said Proposition 8 violated the federal equal protection clause because there was no rational basis for limiting the designation of marriage to straight couples. He also said it violated the federal due process clause because there was not compelling reason for the state to deny same-sex couples the fundamental right to marry.

The 2 to 1 majority opinion was written by Judge Stephen Reinhardt and joined by Judge Michael Hawkins. The partial dissent, by Judge Randy Smith, concerned the constitutionality of Proposition 8.

The majority said California’s Proposition 8 was more of a “surgical precision” attack than Colorado’s Amendment 2. Proposition 8, it said, attacked “one specific right: the right to use the designation of ‘marriage’ to describe a couple’s officially recognized relationship.”

The Ninth Circuit panel heard oral arguments concerning these key issues in the case in December 2010.

Yes on 8 attorneys argued during the January 2010 trial that the ban on same-sex marriage was justified because same-sex marriage would make children “prematurely preoccupied with issues of sexuality.”

Olson, arguing against Proposition 8, called that reasoning “nonsense” and said, “If believed, that would justify the banning of comic books, television, video games, and even conversations between children.” And during their 2008 campaign to pass Proposition 8, said Olson, Yes on 8 claimed the ban was justified to protect children from the idea that marriage between same-sex partners is OK.

As expected, the three-judge panel ruling agreed with a California Supreme Court ruling that Yes on 8, the coalition which successfully campaigned for the ban on same-sex marriage in 2008, did have legal standing to appeal Walker’s decision, even though state officials chose not to. The panel unanimously concluded it was “bound” by the state supreme court determination and that Yes on 8 did not “need not show that they would suffer any personal injury from the invalidation of Proposition 8” because “the State would suffer an injury….”

Kristen Perry, the lead plaintiff of the two couples challenging the law, said at a press conference today that the “dark walls of discrimination” are being dismantled. Her partner, Sandra Stier, spoke, as did one of their two sons who said, “With this ruling, in the eyes of the government, my family is finally normal.”

Plaintiff Paul Katami and his partner Jeffrey Zarrillo introduced Zarrillo’s parents, who have been married for more than 40 years.

Zarrillo’s father told the press conference that he was very proud of his son and his “soon-to-be son-in-law.”

Chad Griffin, head of American Foundation for Equal Rights (AFER), which has been funding the litigation against Proposition 8, dodged a question, asking him to comment on an effort underway, by a pro-marriage equality group, to overturn Proposition 8 through a ballot measure. But drew attention to attempts by opponents of same-sex marriage around the country who are trying such strategies as ballot measures and removing judges from office to overcome judicial rulings such as this one.

“We’re not at the end of the line yet,” said Olson, later in the press conference, “but I cannot overstate the importance of the decision today.”

© 2012 by Keen News Service. All rights reserved.

Here’s the full text of the decision:

Ninth Circuit Prop. 8 decision

—  John Wright

Uptown Players among groups bringing “8” to a theater near you

Last fall, we reported on the star-studded reading of Oscar winner Dustin Lance Black’s new play 8, which features readings from the transcripts of the Prop 8 trial in California, the Mormon-backed initiative that sought to ban gay marriage in that state. It was a one-night-only event full of celebs; George Clooney announced he’d do a West Coast version. But other than that, it seemed like something most of America would have to wait for.

Well maybe most, but not Dallas. Sure, we don’t have Clooney or Morgan Freeman, but we will have Uptown Players doing a reading of it, as part of a nationwide program. So far, 17 states have signed on for about 40 readings, include Dallas’ gaycentric theater company.

The play concentrates on the actual oral arguments made by lawyers and unlikely allies David Boies and Ted Olsen in opposing implementation of the proposition.

Uptown has yet released any details — the date, the cast, etc. — but we will post report new information on the project as it is announced.

Black, pictured above, won an Oscar for his screenplay to Milk and has J. Edgar in theaters now.

UPDATE: According to Uptown Players cofounder Craig Lynch, the company will stage 8 in September, to coincide with Dallas Pride. “We are proud to be selected by Broadway Impact as the North Texas theatre company to present a staged reading” he said.

—  Arnold Wayne Jones

Marriage equality activist Ed Watson has died — before he could legally marry his husband

All that Ed Watson wanted was to see the courts overturn Proposition 8 so that he could legally marry his partner of 40 years before his Alzheimer’s robbed him of the ability to remember his wedding. But Watson died last week, at age 78, as the 9th Circuit Court of Appeals continues to consider arguments in the lawsuit against the California constitutional amendment that robbed same-sex couples of the right to wed.

Ed Watson, left, and Derence Kerneck

Watson and his partner, Derence Kerneck, met more than 40 years ago on the campus of Cal Poly in San Luis Obispo, and have “been together ever since, happy, devoted and dearly in love,” Kerneck said in a video to couple made earlier this year for the Courage Campaign Institute (watch it below), urging the 9th Circuit Court to uphold Judge Vaughn Walker‘s trial court ruling overturning Prop 8 and to lift the stay placed on Walker’s ruling so that they could get married.

At the time they made the video last spring, Watson had just recently been diagnosed with Alzheimer’s and it was, Kerneck said at the time, advancing rapidly. He explained that they wanted to have their service while Watson could still remember “the service and remember the commitments and the enduring love. It’s difficult because every day that goes by, you don’t know how many good days there are left. Already there are more bad days than there are good days.”

Unfortunately, the stay of Walker’s ruling remained in place, leaving Watson and Kerneck in an ever-worsening situation, especially financially since, because they were not legally married, Kerneck’s retirement insurance wouldn’t cover Watson’s medical expenses. Now, it is too late.

I believe that we will, eventually, win the battle for marriage equality, and that our relationships will soon be legally recognized. But no matter when that happens, it will be too late — and not just for Ed Watson and Derence Kerneck. There are hundreds — thousands — of loving couples out there who are denied hundreds of basic rights and privileges they deserve every day: those who die of treatable diseases because their partners’ insurance wouldn’t cover them, those who lose their homes and savings to inheritance taxes after a partner dies, those who lose children to anti-gay laws, those who are not allowed into hospitals to see their dying loved ones one last time.

It’s already too late for so many. But we will keep fighting, because there are more of us out there. We will keep fighting until we win. And when we win, we have to remember those like Ed Watson and Derence Kerneck who helped make the victory possible, but did not live long enough to enjoy the victory.

—  admin

Prop 8 supporters can appeal

David Boies, one of the attorneys that won a ruling against Prop 8 in district court

The California Supreme Court today issued an advisory ruling indicating that ProtectMarriage.com does have standing to appeal a trial court ruling that Proposition 8, the 2008 amendment to the state’s constitution that banned same-sex marriage.

The Supreme Court issued the decision after being asked to do so earlier this year by the 9th Circuit Court of Appeals. The Supreme Court’s opinion is an advisory ruling only, which means that the appellate court is not bound by its findings. The 9th Circuit judges, however, have previously indicated they would follow the Supreme Court’s decision.

Prop 8, approved by California voters the same year that Barack Obama was elected president, was ruled unconstitutional in the summer of 2010 by District Judge Vaughn Walker, who has since retired. The amendment was defended in court by ProtectMarriage.com, the primary backer of the Prop 8 referendum, after California Attorney General Jerry Brown refused to defend it in court. Gov. Arnold Schwarzenegger also failed to defend the amendment in court.

When ProtectMarriage.com appealed Walker’s ruling to the appellate court, the three-judge panel chosen to hear the case heard oral arguments in early December 2010 and a month later asked the state Supreme Court to weigh in on the question of standing.

In its ruling issued today, the Supreme Court wrote:

“In response to the question submitted by the Ninth Circuit, we conclude, for the reasons discussed above, that when the public officials who ordinarily defend a challenged state law or appeal a judgment invalidating the law decline to do so, under article II, section 8 of the California Constitution and the relevant provisions of the Elections Code, the official proponents of a voter-approved initiative measure are authorized to assert the state’s interest in the initiative’s validity, enabling the proponents to defend the constitutionality of the initiative and to appeal a judgment invalidating the initiative. …”

Now the wait begins to see if the 9th Circuit abides by the Supreme Court’s ruling on standing, and how the appellate court will rule on the merits of the case. Regardless of the outcome, the case is likely to be appealed again, first to the full 9th Circuit, and then to the U.S. Supreme Court.

Since Prop 8 was voted on in 2008, more than twice as many people are covered by marriage equality laws in the United States. New York legalized same-sex marriage in June, 2011. Several states including Illinois have new domestic partnership laws and several countries have also recognized marriages between gay and lesbian couples.


—  David Taffet

California Supreme Court to issue ruling Thursday on question of standing in Prop 8 case

The passage of Proposition 8 sparked angry protests around the country

The California Supreme Court today announced that it will issue its opinion tomorrow, Thursday, Nov. 17, on whether supporters of Proposition 8 have standing to appeal a trial court ruling that the voter-approved amendment banning same-sex marriage is unconstitutional, according to this report at MetroWeekly.com.

Voters passed Prop 8 in the November 2008 election, 52 percent to 48 percent, just months after the state Supreme Court issued a ruling saying that a law prohibiting same-sex marriage in California violated the state’s Constitution. Prop 8, however, amended the California Constitution, adding a clause declaring that only marriage between one man and one woman is valid or recognized there.

The vote sparked widespread protests, and opponents soon filed a federal lawsuit, Perry v. Schwarzenegger, claiming that Prop 8 violates the 14th Amendment guarantees of due process and equal protection in the U.S. Constitution. Then-Attorney General Jerry Brown chose not to defend the case in court, saying he, too, believed Prop 8 was unconstitutional. Then-Gov. Arnold Schwarzenegger said he supported the lawsuit because it asked important constitutional questions that needed to be answered, but none of the other state officials named as defendents were willing to defend the case in court, either.

At that point, a group called ProtectMarriage.com, the official proponents of Prop 8 in the election, and a second group called the Campaign for California Families both filed motions to intervene to defend the amendment. District Court Judge Vaughn Walker allowed ProtectMarriage.com to intervene but denied the second group’s effort. Imperial County filed a motion to intervene to defend Prop 8, but their motion was also denied because the deadline for filing had passed.

In August 2010, Walker ruled in favor of the plaintiffs in the case, declaring Prop 8 unconstitutional. He placed the ruling on hold, however, pending appeal to the 9th Circuit Court, a stay which the 9th Court later extended. ProtectMarriage.com appealed Walker’s ruling to the 9th Circuit, and again Brown and Schwarzenegger refused to defend the amendment in court. And this time, Walker’s ruling cast doubt on whether ProtectMarriage.com actually had legal standing to appeal his ruling.

A three-judge panel from the 9th Circuit Court heard oral arguments on the case on Dec. 6, 2010 and a month later, on Jan. 4, 2011, the 9th Circuit judges sent the request to the California Supreme Court, asking for an opinion on whether ProtectMarriage.com had legal standing to appeal Walker’s ruling.

Regardless of how the California Supreme Court rules tomorrow on the question of standing, the case is still a long way from settled. Whichever way the three-judge 9th Circuit panel eventually rules on the constitutionality of Prop 8, those on the losing side of that argument will likely appeal first to the full 9th Circuit Court, and from there to the U.S. Supreme Court.

—  admin

What’s Brewing: Prop 8 case back before Calif. Supreme Court; Baldwin announces Senate bid

Congresswoman Tammy Baldwin
Congresswoman Tammy Baldwin at the Black Tie Dinner in Dallas last year.

Your weekday morning blend from Instant Tea:

1. The California Supreme Court will hear oral arguments today on whether sponsors of Proposition 8 have standing to defend the same-sex marriage ban in court. The state Supreme Court’s ruling, due within 90 days, will help determine whether a federal court takes up the sponsors’ appeal of a decision declaring Prop 8 unconstitutional.

2. Congresswoman Tammy Baldwin, D-Wisc., formally announced today that she’s running for U.S. Senate. If she wins, Baldwin will become the first openly LGBT person to serve in the Senate. “The fact is, I’ve been honest about my sexual orientation my entire adult life,” Baldwin told the Milwaukee Journal Sentinel. “And integrity is important in public service. But what voters are looking for is somebody who understands them, is fighting for them and won’t give up. The election is not going to be about me, it’s about the voters.”

3. LGBT activists glitter-bombed an anti-gay group from a chair lift at the Minnesota State Fair this weekend. The anti-gay group, Minnesota for Marriage, reportedly was given preferential treatment to distribute literature at the fair over a pro-equality group, Minnesotans United for All Families. Watch the glitter-bombing below.

—  John Wright

Judge mulls unsealing videos from Prop 8 trial

Judge James Ware

After Monday’s hearing, Vaughn Walker’s successor says he’ll issue written ruling at later date

LISA LEFF | Associated Press

SAN FRANCISCO — The legal sparring over California’s same-sex marriage ban returned to a federal courtroom Monday with a judge hearing arguments on whether he should unseal video recordings of last year’s landmark trial on the constitutionality of the voter-approved measure.

Lawyers representing two same-sex couples, the city of San Francisco and a coalition of media groups that includes The Associated Press asked Chief U.S. District Judge James Ware to make the recordings public.

They maintained that allowing people to see the proceedings for themselves was necessary to demonstrate why Ware’s predecessor, former Chief Judge Vaughn Walker, ultimately struck down the ban, known as Proposition 8, and to counter any perceptions that Walker was biased against same-sex marriage opponents from the start.

“Releasing the video would allow everyone to review and make their own judgment about what happened,” Theodore Boutrous, the couples’ attorney, told the judge.

Ware did not rule at the end of Monday’s hearing but said he would issue a written ruling at a later date.

Attorneys for the ban’s backers want to keep the videos under wraps. They argued that disseminating oral and visual recordings of the 13-day trial would be a direct violation of the U.S. Supreme Court’s position on the issue.

As the trial got under way in January 2010, the high court, on a 5-4 vote, blocked cameras from covering the high-profile case so they could be streamed live to other federal courthouses and possibly posted on YouTube.

Walker, asked the court staff to keep shooting the proceedings, but sealed the videos with the understanding that they were being produced for his own review in reaching a verdict.

“We were entitled to rely on those unqualified assurances, and we did,” David Thompson, a lawyer for the religious and conservative groups that sponsored Proposition 8, said about the move by Walker.

In taking the matter under advisement, Ware said he was torn between the desire to preserve public access to court proceedings and upholding the integrity of the courts.

“The judicial process is affected when a judge takes the position of, “I will seal this and use it only for a limited purpose,’ and then that is changed by a different judge and unsealed and used for a different purpose,” the judge said.

Walker’s ruling from last August overturning Proposition 8 as an unconstitutional violation of the civil rights of gay Californians is currently on appeal. The recordings are part of the case record before the 9th U.S. Circuit Court of Appeals.

Also before the federal appeals court is the proponents’ challenge to Ware’s refusal in June to vacate Walker’s decision. The ban’s sponsors have argued that Walker should have revealed he was in a long-term gay relationship before he presided over the closely watched trial.

Boutrous said at Monday’s hearing that the move to challenge Walker’s impartiality made it more important for the public to see the videos first-hand.

“They tried to undermine the integrity of the court by attacking the proceeding,” he said.

Ware did not seem convinced. He noted that during his 24 years on the bench, “I’ve had lots of parties attack me” and that it was up to the appeals court, not the public, to decide if Walker had acted appropriately.

Gay rights supporters already have used the written transcripts to recreate the full 13-day trial for online audiences. Next month, Morgan Freeman, Marisa Tomei and other big-name actors are scheduled to perform a dramatic play about the trial that screenwriter Dustin Lance Black, who won an Academy Award for the film “Milk,” created from the written testimony.

To those who have not been following the Proposition 8 narrative closely, it therefore may not be immediately obvious why attorneys were spending their time and clients’ money fighting over the recordings as if they were the Nixon White House tapes.

Gay rights supporters claim the footage is their smoking gun, proof that arguments against same-sex marriage cannot hold up under rules of evidence sustained scrutiny and legal standards.

They want to use live segments, especially the cross-examinations to which the expert witnesses called by Proposition 8’s supporters were subjected, to nudge the American public further in its embrace of same-sex marriage, although it’s unclear what the vehicle for the snippets would be.

“There really is only one question–what do they have to hide?” said American Foundation for Equal Rights President Chad Griffin, whose group is funding the Proposition 8 case.

The Proposition 8 defense team, meanwhile, has argued that putting the trial recordings into the public realm could subject their witnesses to unwanted scrutiny in a way that written transcripts have not.

In persuading the Supreme Court to block the broadcasts, lawyers had argued that same-sex marriage opponents feared being harassed by gay rights supporters if their images were distributed widely.

—  John Wright