Judge rejects motion to vacate Prop 8 ruling

Judge Vaughn Walker

A federal judge today upheld a ruling declaring Proposition 8 unconstitutional, rejecting a motion to vacate the ruling on the grounds that the judge who issued it is gay.

Chief U.S. District Judge James Ware handed down his decision this afternoon after hearing arguments on the motion Monday. Ware denied the motion from supporters of California’s same-sex marriage ban, who argued that Judge Vaughn Walker should have recused himself because he’s in a long-term relationship with another man. Walker declared Prop 8 unconstitutional in August.

“The sole fact that a federal judge shares the same circumstances or personal characteristics with other members of the general public, and that the judge could be affected by the outcome of a proceeding in the same way that other members of the general public would be affected, is not a basis for either recusal or disqualification under Section 455(b)(4),” Ware wrote in his decision. “Further, under Section 455(a), it is not reasonable to presume that a judge is incapable of making an impartial decision about the constitutionality of a law, solely because, as a citizen, the judge could be affected by the proceedings. Accordingly, the Motion to Vacate Judgment on the sole ground of Judge Walker’s same-sex relationship is DENIED.”

Peter Renn, a staff attorney for Lambda Legal who attended Monday’s hearing, said: “The court decisively rejected an outrageous attack on the integrity of Judge Walker, not to mention judges in general. The motion was a sideshow designed to deflect attention from the fact that the proponents had every chance to prove that Prop 8 was constitutional, but could not do so. Prop 8 was declared unconstitutional because it is unconstitutional — not because the judge is gay.”

Read Ware’s full decision here.

—  John Wright

Judge to rule within 24 hours on Prop 8 motion

Judge James Ware

U.S. District Chief Judge James Ware plans to issue a written ruling within 24 hours on a motion to vacate Judge Vaughn Walker’s decision declaring Prop 8 unconstitutional. And it sure sounds like Ware intends to rule against Prop 8 supporters, who say Walker should have recused himself because he’s gay and was in a long-term same-sex relationship.

Reuters reports that Ware, who’s African-American, sharply questioned attorneys for Prop 8 supporters during today’s hearing on the motion. “If a reasonable person thought a black judge should recuse himself from a civil rights case, that would be sufficient to recuse the judge?” Ware said.

The LA Times reports that Ware also noted there is no evidence Walker ever wished to marry his partner.

From the National Center for Lesbian Rights, one of the groups that filed a brief in May opposing the motion:

“Today’s hearing made it crystal clear that the Prop 8 proponents’ central claim — that Judge Walker should have recused himself from the case because he is in a same-sex relationship — is absolutely baseless. During the hearing, Judge Ware pointedly asked the attorney for the proponents whether an African-American judge would have to recuse himself from a race discrimination case because some people might view him as biased. As Judge Ware’s question artfully showed, our legal system does not assume that judges who are in the majority with respect to their race, religion, sexual orientation or any other personal characteristic are the only ones who can be unbiased. Judges take an oath to be impartial and do their job faithfully. It is outrageous and offensive to suggest that a gay judge is incapable of fulfilling that vow, or that Judge Walker did not do so in this case. We are hopeful that the ruling will dismiss this bigoted attempt to discredit Judge Walker’s eminently sound ruling that concluded correctly, after weeks of trial and months of careful consideration, that Prop 8 is unconstitutional.”

NCLR also noted that today’s hearing included argument on a motion by Prop 8 supporters to force the plaintiffs’ lawyers to return their copies of the video recordings of the trial. Ware announced that he intends to issue a written ruling denying that motion and permitting the lawyers to keep the tapes.

—  John Wright

What’s Brewing: Hearing today on Prop 8 judge’s sexuality; Gov. Perry defends Day of Prayer

Judge Vaughn Walker

Your weekday morning blend from Instant Tea:

1. Prop 8 suppporters today will ask Judge Vaughn Walker’s successor to vacate his ruling declaring California’s same-sex marriage ban unconstitutional, on the grounds that Walker is in a long-term relationship with another man. Chief U.S. Judge James Ware will hear arguments on their motion this morning in San Francisco, and he could rule right away or at a later date. The motion to vacate a ruling based on the judge’s sexual orientation is highly unusual if not unprecedented, and experts say it’s unlikely to succeed. Meanwhile, it’s also unlikely that same-sex marriage will be back on the ballot in California in 2012.

2. In an e-mail to The New York Times, Gov. Rick Perry defended his plans for a Christian-only Day of Prayer event funded by the American Family Association, a designated anti-gay hate group. “The A.F.A. is a group that promotes faith and strong families, and this event is about bringing Americans together in prayer,” he said in his e-mail, adding that “I have made it clear that I believe that marriage should be between one man and one woman.”Ju

3. Sunday night’s Tony Awards ceremony was as gay as ever, with host Neil Patrick Harris performing “Theater is not just for gays any more” as the opening number, and the Broadway production of Larry Kramer’s The Normal Heart taking three honors. Watch video below of the opening and read Arnold Wayne Jones’ full recap. For a full list of winners, go here.

—  John Wright

What’s Brewing: Dallas County Commissioners Court to vote on transgender protections

Rachel Maddow

Your weekday morning blend from Instant Tea:

1. The Dallas County Commissioners Court is scheduled to vote this morning on whether to add transgender employees to the county’s nondiscrimination policy. County Judge Clay Jenkins and LGBT advocates have urged members of the community to attend the meeting in a show of support for the amendment, which comes five weeks after the Commissioners Court added sexual orientation to the policy. Opponents of the amendment are expected to attend the meeting as well, and it remains unclear whether the measure has enough votes to pass. The meeting begins at 9 a.m. at the county administration building, 411 Elm St. Stay tuned to Instant Tea for a full report from the meeting later this morning.

2. Prop 8 supporters have filed a motion seeking to vacate Judge Vaughn Walker’s ruling striking down California’s same-sex marriage ban, on the grounds that Walker had a conflict of interest because he’s in a long-term gay relationship.

3. MSNBC host Rachel Maddow said she thinks others gay cable TV anchors need to come out, but later insisted she wasn’t talking specifically about CNN’s Anderson Cooper.

—  John Wright

Lt. governor candidates low key on LGBT issues

Dewhurst lists fiscal responsibility as a top issue; Chavez-Thompson says she is focusing on education

DAVID TAFFET  |  Staff Writer taffet@dallasvoice.com

ON THE ISSUES | Although the candidates for Texas lieutenant governor have been relatively quiet on LGBT issues, a few key statements give an indication on where they stand. Republican incumbent David Dewhurst, left, chimed in to help cancel a student production of the gay-themed play “Corpus Christi” last spring. Linda Chavez-Thompson, the Democratic challenger, Tweeted her support for equality when a judge overturned California’s Proposition 8.

LGBT issues are not playing a big role in the race for Texas lieutenant governor between Republican incumbent David Dewhurst and Democratic challenger Linda Chavez-Thompson.

Neither candidate addresses LGBT issues on their website. But while neither campaign returned phone calls from Dallas Voice seeking comment for this story, a Tweet and a recent incident give an indication of their positions.

Dewhurst played a role in last spring’s controversy over the production of the play “Corpus Christi” at Tartleton State University in Stephenville.

“No one should have the right to use government funds or institutions to portray acts that are morally reprehensible to the vast majority of Americans,” Dewhurst said in a written statement.

In later praising the university for canceling the performance, he claimed he was “a strong defender of free speech.”

Chavez-Thompson has taken a more LGBT-friendly stance.

After the Proposition 8 decision was handed down in California, she Tweeted her reaction to the ruling: “So glad to hear Prop 8 was overturned today. It was discrimination at its worst. I will keep fighting for equality for all Texans.”

Dallas County Democratic Party Chair Darling Ewing said she believes Chavez-Thompson would be an ally to the LGBT community.

“Linda comes from an immigrant family, a poor family,” said Ewing. “On equality, she’ll be right on the issues.”

Dewhurst has been lieutenant governor since 2003 and is running for a third term. He was first elected to statewide office in 1998 as commissioner of the General Land Office of Texas.

On his website, Dewhurst prominently displays a “Petition to Repeal Obamacare” directly under his “Take Action” call for volunteers for his campaign.

Under a pull down list of issues, health care is first. While he claims that an overwhelming majority of people oppose the “2,000-plus page, $1.2 trillion, health care overhaul” and estimates the new law will add $27 billion in costs to taxpayers, he proposes no solution to the lack of health coverage by Texans.

“He isn’t in favor of health care,” Ewing said. “He’s only interested in not paying for it.”

Dewhurst’s other top issues are fiscal responsibility, border security and property rights. He believes the federal government has not stopped the flow of illegal drugs and immigrants into Texas, and he says Texas has stepped in to enhance border security. He does not, however, propose an Arizona-type immigration law for the state.

Chavez-Thompson lists jobs and education as her top issues.

“The state has dropped the ball on education,” Ewing said. “It’s all about saving a buck. They’ve made college education a luxury. The cost of a college education today is ridiculous.”

Chavez-Thompson also addresses the health care debate on her website, saying, “Today, rising health care costs has forced too many Texas families to go without insurance.”

Chavez-Thompson spent most of her career working her way up through union ranks. When she was chosen to serve as the executive vice president of the AFL-CIO, she was the first woman and the first person of color to hold that position.

President Bill Clinton appointed Chavez-Thompson to serve on his Race Advisory Board and on the President’s Committee on Employment of People with Disabilities. Today, she is vice chair of the Democratic National Committee.

“I think what she brings us is a workingman’s perspective,” Ewing said. “Because of her union history, she brings bargaining skills that would bring groups together.”

Local Republicans did not return calls or offered no comment for this article.

This article appeared in the Dallas Voice print edition September 17, 2010.

—  Michael Stephens

What now with Prop 8?

Appeals court has stayed Walker’s ruling, but the case has been fasttracked as appeals over standing, merits work through the system

DAVID TAFFET  |  Staff Writer  taffet@dallasvoice.com

Chris Stoll
Chris Stoll

The three-judge panel of the 9th Circuit Court of Appeals in California that stayed the lower court’s decision this week ordered the Proposition 8 supporters to defend their standing in the case as it moves up on appeal.

Attorneys following the case closely all called the stay disappointing but were encouraged by the court questioning the standing of the defendants and the fast track timetable.

Chris Stoll is senior staff attorney for National Center for Lesbian Rights, a San Francisco-based organization that filed a brief in the Prop 8 case. He said that although it was disappointed that same-sex couples could not start getting married immediately, he was encouraged that the court fast-tracked the hearing to December and asked both sides to address standing.

Jennifer Pizer, National Marriage Project director for Lambda Legal, said she, too, was not surprised by the stay.

“It’s common for judges to maintain a status quo,” Pizer said.

She said that the stay does not indicate the merits of the case.

In fact, it is quite the opposite, she said, as indicated by the court directing the defendants to justify their standing in the case.

Ken Upton, senior staff attorney for Lambda Legal’s South Central Regional office in Dallas, said that the stay “probably isn’t going to matter much” in the long run because the court put the case “on a really short docket.”

Upton said he liked the schedule.

The court will hear the case after the election, but before a new governor takes office in California.

A different governor could decide to defend the case, Upton noted.

Federal District Judge Vaughn Walker ruled last week that there was no basis to continue a stay of his Aug. 4 ruling declaring Prop 8 unconstitutional. But he declined to lift his stay early, instead saying that it would expire Aug. 15 at 5 p.m., as he had originally ordered.
That gave the 9th Circuit court time to consider issuing a its own stay.

Gov. Arnold Schwarzenegger and Attorney General Jerry Brown had agreed to abide by the lower court’s ruling and said the case should not be appealed.

Since the state was the defendant in the case, the standing of the interveners, the Yes on 8 group that had campaigned for the amendment’s passage and that actually defended the case in court, is now in question.

Stoll explained that in a normal schedule for the 9th Circuit, final briefs might have been filed in December with oral arguments heard in February or later.

With extensions, the case might not have come before the appellate court until well into the spring.

While many cases are decided within weeks, the court is on no deadline. In a more complicated case like this, the decision could take months, Stoll said.

Two cases involving standing will be heard as well as the appeal of the actual ruling.

Officials with Imperial County in southeastern California have filed to defend Proposition 8 on behalf of the state.

And the Yes on 8 group, also known as the interveners, who defended the lower court case are appealing the judge’s decision. But their standing is also being questioned.

Stoll said that traditionally conservatives in the higher courts take a narrower view of standing than liberals.

Jenny Pizer
Jenny Pizer

“In general, they don’t want to be giving opinions that would be advisory and don’t have an impact on real people,” he said. “If the state is willing to abide by the trial court’s opinion, should the courts hear the case?”

When the court rules, presumably it will address standing first. If they find that the interveners and Imperial County officials do not have standing, Stoll said he didn’t expect any further discussion of the case by the court.

If they rule that either of the interveners have standing, then they will rule on the constitutional question.

To show that they have standing to appeal, the interveners “need to show they’ve been harmed to make a federal case out of it,” Pizer said.

“When a law is challenged as being unconstitutional, they can’t just stand up and say, ‘But we really, really want it.’ That works on Fox TV, but not in court.”

However, if the appeals court rules the interveners do not have standing, they can appeal to the U.S. Supreme Court. If that court finds that they do have standing, the case would return to the Circuit Court for a ruling on the legal issues.

If the appellate court finds that the interveners do have standing, then that court will rule on the merits of the case, deciding whether Judge Walker’s interpretation of law was correct and if Proposition 8 is illegal under California’s constitution.

When the three-judge panel that will hear the case makes that decision, either side can petition for the case to be heard “en banc,” which means by the full court. But in the 9th Circuit court, it means a panel of 11 judges chosen randomly from among the 29 on the court.

The ruling by the 11-member panel could then be appealed to the U.S. Supreme Court.

Pizer sees the expedited hearing schedule and the court’s decision to issue the stay as a compromise made by the court.

“The stay keeps things simpler,” she said.

Pizer said that until the hearing, both sides would be writing briefs. The defense will be arguing that they have standing in the case and that in his decision Judge Walker misread the law.

Ted Olson and David Boies, the two high-profile attorneys representing the plaintiffs in the case, will argue that the interveners have no standing since they are not the ones issuing marriage licenses. Their briefs will argue that the defendants presented no credible witnesses or evidence and the only ones harmed by Proposition 8 are same-sex couples waiting to get married.

Pizer said that the LGBT community should use this time wisely until the case is heard.

“We need to be educating our neighbors about why Judge Walker is correct,” she said.

This article appeared in the Dallas Voice print edition August 20, 2010.

—  Michael Stephens

Is gay-friendly Bravo getting political … and dissing the gays by skipping marriage ep?

Every morning before work, I watch two consecutive episodes of The West Wing on Bravo. For the most part, the episodes are aired in chronological order, meaning in about two-and-a-half weeks you get an entire season condensed, all before coffee. Occasionally, only one episode will air for reasons I don’t get, or a rare episode will come out of order (one I recall: the post-9/11 “special” that aired two eps late), but they always air.

But not this week. And I wonder if political sensitivity might be the issue.

Bravo is an extremely gay-friendly network, airing shows like Kathy Griffin: My Life on the D-List (who talks constantly about her gays), and with gay contestants and judges on virtually every reality show. But this week, they skipped one episode. And there is no sign they have plans to air the missing episode in the near future. And that episode is about gay marriage.

The graphic below from IMDB.com shows the ep Bravo skipped. I started to wonder whether the reason for the break in protocol has something to do with avoiding some hot-button topics in light of the recent Prop 8 news. And if so, why Bravo, of all networks, would chose this episode. After all, The West Wing is a political show about many real-world issues. Why pick this one now, with their history? Maybe we oughta ask Bravo to explain.

—  Arnold Wayne Jones

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

Historic Prop 8 ruling prompts ‘rare’ discussion about gay rights at Dallas Log Cabin meeting

Believe it or not, we really don’t go out of our way to pick on the Dallas chapter of Log Cabin Republicans or its president, Rob Schlein. But sometimes they make it too easy, and after all, we kid because we love, right?

So we couldn’t resist sharing this e-mail we received over the weekend inviting us to Log Cabin’s August meeting, which will feature a discussion about the recent Prop 8 decision.

As you can see, the e-mail states that, “Log Cabin rarely delves in gay rights issues at chapter meetings …”

Hey, at least they admit it!

—  John Wright

Walker lifts stay on Prop 8

Word on the blogs is that Judge Vaughn Walker has lifted the stay on his ruling overturning Proposition 8.

Haven’t had that officially confirmed yet, but if it’s true, same-sex marriages can begin immediately in California.

The Yes on 8 people have, of course, said they will appeal the decision.

—  admin