Federal appeals court asked to allow same-sex marriages to resume in California

Ted Olson

The American Foundation for Equal Rights, which is challenging Proposition 8 in federal court, today asked an appeals court to lift its stay blocking same-sex marriages in California and allow them to resume immediately pending the outcome of the case.

In August, the U.S. Court of Appeals for the Ninth Circuit stayed an injunction barring enforcement of Prop 8, California’s ban on same-sex marriage. However, AFER argues in its motion filed today that due to delays in the Prop 8 case, Perry v. Schwarzenegger, the stay should be lifted.

AFER’s request is unrelated to today’s announcement by the Obama administration calling a portion of the Defense of Marriage Act unconstitutional and saying the Department of Justice will no longer defend DOMA in federal court.

“We are respectfully asking the Court to lift its stay on marriage for gay and lesbian couples because it has become apparent that the legal process is taking considerably longer than could reasonably have been anticipated,” said Theodore B. Olson, co-lead counsel for AFER. “It’s important to remember that the stay was originally ordered with the understanding that the Ninth Circuit would rule swiftly on the case before it. Now that the issue of the Proponents’ standing to appeal has been referred for analysis by the California Supreme Court, substantial additional, indefinite and unanticipated delays lie ahead. It’s unreasonable and decidedly unjust to expect California’s gay and lesbian couples to put their lives on hold and suffer daily discrimination as second class citizens while their U.S. District Court victory is debated further.”

Read the full press release after the jump.

—  John Wright

Calif. Supreme Court agrees to rule on whether Prop 8 supporters have standing to appeal

LISA KEEN | Keen News Service

The road to marriage equality in California just got a little longer.

The California Supreme Court said today it would make ruling on whether Yes on 8 proponents have authority, under California law, to appeal a federal court ruling that the initiative is unconstitutional.

The announcement, at 4:20 p.m. Central time today, means the California court will soon hear arguments in the landmark Perry v. Schwarzenegger case. But the question will be a procedural one only: whether there is any authority under California law that would provide Yes on 8 proponents with standing to defend Proposition 8 in a federal appeals court.

The court’s brief announcement said it would hear arguments on an expedited schedule and asked that the first briefs be due March 14 and that oral argument take place as early as September.

Once the California Supreme Court decides whether state law provides any right to Yes on 8 to represent voters on appeal, the 9th Circuit U.S. Court of Appeals panel will then make its final determination as to whether Yes on 8 has standing to appeal. And, if the 9th Circuit says Yes on 8 does have standing, it will also rule on the constitutionality of Proposition 8.

The question before the California Supreme Court was whether there is any authority under California law that would enable Yes on 8 proponents to represent voters who approved Proposition 8. The answer mattered to the 9th Circuit Court of Appeals panel. Without any authority under state law, the appeals panel suggested, the group might not have any “standing” at all to appeal the decision. If a party has “standing,” they are sufficiently affected by a conflict to justify having a court hear their lawsuit or appeal on the matter.

When the legal team of Ted Olson and David Boies filed a legal challenge to California’s Proposition 8 in federal district court, the state, under Gov. Arnold Schwarzenegger and Attorney General Jerry Brown, had standing to defend the law. But neither provided a defense and, instead, the Yes on 8 coalition that campaigned for the initiative did so.

When the district court found Proposition 8 unconstitutional, the state officers said they would not appeal the decision, so Yes on 8 once again sought to defend the law, this time in the federal appeals court. But both Schwarzenegger and Brown urged the 9th Circuit not to accept the appeal, saying the best thing for California was to abide by the district court ruling.

So, when the 9th Circuit panel heard oral arguments on the appeal last December, one of the first and most pressing issues it had to wrestle with was whether Yes on 8 still had “standing” to bring the appeal when the state government had decided it wanted to honor the district court decision.

What bothered the panel was their belief that the state officers — Schwarzenegger and Brown — were acquiring veto power by simply refusing to defend a voter-approved law with which they disagreed.

The panel asked the California Supreme Court to say whether there might be some authority under state law that would provide Yes on 8 with standing to bring the appeal.

The legal team challenging Proposition 8, led by Ted Olson and David Boies, filed briefs with the California Supreme Court, saying the state court should not provide such a determination because the standing issue in a federal appeals court is essentially a matter of federal law.

© 2011 by Keen News Service. All rights reserved.

—  John Wright

Prop 8 case sent to Calif. Supreme Court

LGBT advocates frustrated over delay

Lisa Keen  |  Keen News Service

A 9th Circuit U.S. Court of Appeals panel surprised many Proposition 8 observers Tuesday, Jan. 4 when it suddenly issued five documents relating to the case.

But there was no decision Tuesday in Perry v. Schwarzenegger, the landmark case testing whether voters in California violated the U.S. Constitution when they amended the state constitution to ban marriage licenses for same-sex couples.

The bottom line of the documents was that the three-judge panel that heard arguments in an appeal of the case punted a critical question regarding legal standing to the California Supreme Court.

The appellate panel said it would not rule on the constitutionality of Proposition 8 until it gets a ruling from the California Supreme Court as to whether Yes on 8 proponents of the initiative have an “authoritative” entitlement to represent the voters who passed the initiative in the appeal in federal court.

The announcement frustrated and disappointed many.

“It is frustrating that this will slow the case down, especially since there is nothing in California law that gives initiative proponents the power to force an appeal when the official representatives of the state have determined that doing so is not in the best interests of the state,” said Shannon Minter of the National Center for Lesbian Rights.

The development struck some as odd. It appears the federal court is asking a state court whether Yes on 8 has standing to appeal a lower federal court ruling that struck down Proposition 8.

“I don’t think it was necessary to ask the California Supreme Court to rule on that issue,” said Minter, “and I am disappointed the Ninth Circuit did so.” But Ted Olson, a lead attorney on the team challenging Proposition 8, said it’s not uncommon.

And it was not really a surprise to learn the panel is struggling with the question of standing. During oral argument on Dec. 6, all three judges seemed troubled by the idea that a state governor or attorney general could, in essence, acquire an ability to veto a measure passed by voters by simply refusing to defend a challenge to its constitutionality in court. The California constitution does not provide the governor or attorney general a right to veto voter-passed initiatives.

Both Judge Stephen Reinhardt, widely perceived to be the most liberal of the panel, and Judge Randy Smith, the most conservative, seemed concerned that 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. Judge Michael Hawkins expressed frustration during arguments that the panel might be prevented from rendering a decision about the constitutionality of Proposition 8 “so it’s clear, in California, who has the right to marry and who doesn’t.” The panel seemed prepared, on Dec. 6, to ask the California Supreme Court to weigh in on the issue — and it’s somewhat curious that they waited one month before actually doing so.

In its 21-page order to the California Supreme Court, the three-judge panel asked the state court to determine whether Yes on 8 proponents have “rights under California law … to defend the constitutionality of [Proposition 8] … when the state officers charged with the laws’ enforcement … refuse to provide such a defense.”

Olson, in a telephone conference call with reporters soon after the court released its order, said that, if the California Supreme Court determines that there is no authority under state law for Yes on 8 to have standing to represent voters in the appeal, the 9th Circuit would be bound to accept that determination. However, the ruling on standing could still be appealed to the U.S. Supreme Court, he said.

If the California Supreme Court determines Yes on 8 does not have standing and the 9th Circuit rules accordingly, then the decision of U.S. District Court Judge Vaughn Walker on Aug. 4 will become the law throughout California, making it possible for same-sex couples to obtain marriage licenses.

Judge Walker ruled that Proposition 8 violates the U.S. Constitutional guarantees to equal protection and due process. Although neither the attorney general nor the governor provided any defense for the initiative during the trial last January, Walker did allow Yes on 8 proponents to intervene in the trial as defenders of the measure. But the appeals panel indicated that standing in the district court does not necessarily mean Yes on 8 has standing to appeal.

If Yes on 8 does appeal a loss on the issue of standing to the U.S. Supreme Court, and the high court rules in its favor, it would then most likely send the case back to the 9th Circuit for a ruling on constitutionality.

Meanwhile, among its other documents Tuesday, the 9th Circuit panel issued a 16-page opinion that Imperial County, Calif., does not have standing to appeal the district court decision itself. The panel said it was denying the county’s claim for standing on different grounds than did Judge Walker. The panel held that, because the county simply administers the state’s marriage law, it does not have any “interest on its own” to defend. The county has 14 days in which to appeal the panel’s ruling on standing.

The panel’s formal question to the California Supreme Court is: “Whether under Article II, Section 8 of the California Constitution, or otherwise under California law, the official proponents of an initiative measure possess either a particularized interest in the initiative’s validity or the authority to assert the State’s interest in the initiative’s validity, which would enable them to defend the constitutionality of the initiative upon its adoption or appeal a judgment invalidating the initiative, when the public officials charged with that duty refuse to do so.

“If California does grant the official proponents of an initiative the authority to represent the State’s interest in defending a voter-approved initiative when public officials have declined to do so or to appeal a judgment invalidating the initiative,” states the order, “then Proponents would also have standing to appeal on behalf of the State.

“This court is obligated to ensure that it has jurisdiction over this appeal before proceeding to the important constitutional questions it presents,” says the order, “and we must dismiss the appeal if we lack jurisdiction. The certified question therefore is dispositive of our very ability to hear this case.

“It is not sufficiently clear to us, however, whether California law does so,” said the panel. “In the absence of controlling authority from the highest court of California on these important questions of an initiative proponent’s rights and interests in the particular circumstances before us, we believe we are compelled to seek such an authoritative statement of California law.”

Today’s development will, of course, delay the 9th Circuit panel’s decision on the merits of the case — whether voters can withhold marriage licenses from gay couples while granting them to straight couples.

“Further delay in restoring the freedom to marry in California is a lamentable hardship on couples,” said Evan Wolfson, head of the national Freedom to Marry group. “But I am confident that we will regain the freedom to marry in California soon.”

NCLR’s Minter agreed.

“I am confident the California Supreme Court will hold that California law does not give initiative proponents any special power to override the decisions of the state’s elected representatives,” said Minter. “In the meantime, however, Proposition 8 remains on the books, and every day that goes by, LGBT people in California are denied the freedom to protect their families and express their love and commitment through marriage. This will delay,” he said, “but not deny, the day that Proposition 8 is gone for good.”

The full text of the order is below.

© 2011 Keen News Service. All rights reserved.

CA9Doc 292

—  John Wright

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

As Senate begins DADT hearings, Guy-Gainer accuses Republicans of ‘juvenile mutiny’

Dave Guy-Gainer

Senate Republicans are committing “a form of juvenile mutiny” by indicating they’ll block consideration of “don’t ask don’t tell” during the lame duck session, according to a leading local advocate for repealing the policy.

All 42 Republican senators signed a letter delivered to Majority Leader Harry Reid on Wednesday pledging to block any legislation that’s unrelated to government funding or taxes this month.

The Senate Armed Services Committee began hearings at 8 a.m. Dallas time today (you can watch live here) on the Pentagon’s report on DADT, which was released Tuesday and concluded that there’s “low risk” to ending the ban. But regardless of the Pentagon report and the committee hearings, some believe Wednesday’s letter to Reid  seriously threatens DADT repeal this year.

Dave Guy-Gainer, an openly gay retired Air Force chief master sergeant who lives in Tarrant County, said there were “no surprises” as he watched Tuesday’s press conference during which the Pentagon report was released.

“In fact, as I listened to each of the four speakers, I heard the same words and sentences that proponents of Repeal have said for many many years,” said Guy-Gainer, a board member for the Servicemembers Legal Defense Network. “The impact of repeal is minimal. And the concerns that some have can be overcome by education and leadership. It was refreshing to hear Secretary Gates call upon the Senate to enact repeal by the end of December. I understand that he has instructed the services to continue to draft the changes to their many regulations and policies and to draft the lesson plans that will be used to educate the force so that they will be ready when repeal happens. Or, they will be ready when the judiciary calls an end to DADT.”

Guy-Gainer added that he believes the findings of the report, along with polls showing a vast majority of Americans support DADT repeal, should serve as a mandate for the Senate to act.

“In military terms, I personally find their [the Senate Republcans'] letter to be a form of juvenile mutiny,” Gainer said.”These Senators were sent to Washington by people called constituents as a part of a whole. In law a constituent is one who appoints another to act on their behalf. About 80 percent of Americans support repeal and that 80 percent is certainly not made up solely of members of other parties. These Senators are there to vote the will of the people and not there to support the selfishness of partisan politics.

“If there is a threat to our national security, it is the withholding of the military funds that would be provided by the National Defense Authorization Act,” Gainer said, referring to the bill to which DADT repeal is attached. “By one measure, 92 percent of our military is fine working alongside gay and lesbian counterparts. But, none of them can function without biscuits, beans and bullets. After months of delay, it is time for a vote to be taken.

“Hopefully, those who read this article will find a way to inspire these 42 to use the power that was handed them at the ballot box to vote according to the wishes of the nation, the President, the Secretary of Defense, the Chairman of the Joint Chiefs, and the men and women of our nation’s military. Failing passage this month leaves the issue in the hands of the judiciary — and those cases will proceed.”

—  John Wright

Pentagon report sets up Senate showdown on ‘don’t ask don’t tell’

LISA KEEN  |  Keen News Service

Defense Secretary Robert Gates sent mixed signals Tuesday, Nov. 30 in releasing the Pentagon’s long-awaited study about how to implement repeal of “don’t ask don’t tell.”

Gates said repeal “can and should be done,” but he urged Congress to consider the views of all-male combat units who expressed concern about negative consequences. He said the concerns of those combat units were “not an insurmountable barrier” to repealing the ban on openly gay people in the military, but said the military should be given “sufficient time” to exercise “an abundance of care and preparation” in rolling out that repeal. And neither he nor any other top Pentagon official were willing to give even a vague estimate of how much time would be sufficient.

But in a statement released Tuesday evening, President Barack Obama urged the Senate to act “as soon as possible,” saying he is “absolutely confident” troops “will adapt to this change and remain the best led, best trained, best equipped fighting force the world has ever known.”

The president reportedly spoke to Republican and Democratic leaders about DADT during a meeting at the White House on Monday to discuss a number of issues. Details of those conversations were not available.

Gates’ remarks and the report released by the Pentagon on Tuesday on how best to implement repeal of DADT will provide both proponents and opponents of repeal plenty of political ammunition once the Senate takes up the issue sometime this month.

The 256-page study is called the Report of the Comprehensive Review of the Issues Associated with a Repeal of “Don’t Ask, Don’t Tell.” The report includes 20 pages of recommendations, presented in essay form, and 112 pages discussing and illustrating the results of surveys conducted of servicemembers and their families. Most media reports focused on the survey results, but the recommendations have, perhaps, the greatest importance for the LGBT community. The most significant of the recommendations include:

• Issuing “an extensive set of new or revised standards of conduct” for servicemembers while in uniform, including for such matters as “public displays of affection,” dress and appearance, and harassment, and that those standards “apply to all Service members, regardless of sexual orientation”;

• That military law not add sexual orientation “alongside race, color, religion, sex, and national origin as a class eligible for various diversity programs or complaint resolution processes.” Instead, the report recommends DOD “make clear that sexual orientation may not, in and of itself, be a factor in accession, promotion, or other personnel decision-making.” Complaints regarding discrimination based on sexual orientation would be addressed through “mechanisms” available for complaints other than those involving race, color, sex, religion, or national origin — “namely, the chain of command … and other means as may be determined by the Services.”

• Repeal Article 125 of the Uniform Code of Military Justice to the extent it prohibits consensual sodomy, regardless of whether same-sex or heterosexual;

• Amend the code to “ensure sexual orientation-neutral application” with regards to sexual offenses. For instance, Article 134 prohibiting adultery, would be rewritten to include a married female servicemember having sex with another woman who was not her spouse;

•  No separate housing or bathroom facilities for gay or lesbian servicemembers and no assignments of sleeping or housing facilities based on sexual orientation “except that commanders should retain the authority to alter … assignments on an individualized, case-by-case basis, in the interest of maintaining morale, good order, and discipline, and consistent with performance of mission”;

• No revision “at this time” of regulations to add same-sex committed relationships to the current definition of “family members” or “dependents” in regards to military benefits, such as housing, but to revisit the issue at a later date;

• Review benefits “that may, where justified from a policy, fiscal, and feasibility standpoint,” be revised to enable a servicemember to designate “whomever he or she wants as a beneficiary”;

• Evaluate requests for re-entry into the military from those servicemembers discharged under DADT “according to the same criteria as other former Service members seeking re-entry”; and

• No release from obligations of service for military personnel who oppose serving alongside gay and lesbian service members.

The survey part of the report indicates:

• 69 percent of servicemembers believed they had already served with someone they knew to be gay;

• 70 percent to 76 percent said repeal would have “a positive, a mixed, or no effect” on task cohesion; and 67 percent to 78 percent said it would have positive, mixed or no effect on “social cohesion”;

• 92 percent of those servicemembers who said they served alongside a gay person said they did not consider the gay servicemember’s presence to have created any problems for unit cohesion; and

• 26 percent said they would take a shower at a different time than a gay servicemember.

The report noted that the responses of Marines Combat Arms units (fighting forces on the ground) were “more negative” than the forces overall concerning how gay servicemembers would affect unit cohesion. Overall, 21 percent said gays in the unit would negatively affect their unit’s readiness, but while 43.5 percent of Marine Combat Arms said so.

Both Gates and Joint Chiefs of Staff Chairman Admiral Mike Mullen also underscored a need to move slowly and carefully to implement repeal, should Congress approve it. In doing so, Gates highlighted a finding that between 40 percent and 60 percent of all-male combat arms and special operations units predicted a negative effect of repeal on unit cohesion. He said this finding was a concern for him and for the chiefs of the branches of service. And he urged Congress to consider this in its deliberations.

But Gates said he did not consider that finding to be an “insurmountable barrier” and said he does believe repeal “can and should be done without posing a serious threat to military readiness.”

Even before the report was officially released at 2:15 Eastern time on Tuesday, Servicemembers Legal Defense Network said it expected the report to be “overwhelmingly positive” and “one of the best tools that repeal advocates can use” in the lame duck Congress.

The report will be the subject of two days of hearings before the Senate Armed Services Committee on Thursday and Friday, Dec. 2 and 3. Republican opponents of repeal, led by Sen. John McCain, R-Ariz., are expected to challenge the legitimacy of the study and to tweak out information within it to support their position against repealing the law.

Sen. Lindsey Graham, R-S.C., who had been considered a potential vote for repeal, surprised many over the weekend when he began to parrot a criticism of the study that McCain raised in recent days — that the Pentagon studied “how” to repeal DADT, not “whether” to repeal it.

Gates rebuffed this criticism previously and again during today’s press conference.

“This report does provide a sound basis for making decisions on this law,” said Gates. “It’s hard for me to imagine you could come up with a more comprehensive approach.” More than 400,000 servicemembers responded to a survey, as did thousands of family members. And Mullen said data “is very compelling.”

But Graham also told Fox News Sunday on Nov. 28 that he doesn’t believe there is “anywhere near the votes” to repeal DADT “on the Republican side.”

Democrats don’t really need Republican votes to repeal DADT; it takes only 51 and, with Independents, they have 58. But many took Graham’s remarks to suggest that Republicans would stand together as a party to block the Senate from even considering the Defense Authorization bill that contains the DADT repeal language.

“I think we’ll be united in the lame duck,” said Graham of Republican senators. “… So I think in a lame duck setting, ‘don’t ask don’t tell’ is not going anywhere.

And that’s where the uncertainty lies: Will Democrats have 60 votes to break a Republican filibuster in order to begin deliberation on the FY 2011 Defense Authorization bill?

Aubrey Sarvis, executive director of Servicemembers Legal Defense Network, said he expects McCain and others to try and thwart repeal. He said he was hopeful Senate Majority Leader Harry Reid would be able to reach an agreement with Minority Leader Mitch McConnell on some number of amendments either party could offer on the annual Defense Authorization bill which contains the repeal language. Among those amendments, said Sarvis, will almost certainly be one to strip the repeal language from the bill, but Sarvis said he does not believe there are enough votes to do that.

Sarvis also made clear during a telephone press conference with reporters Tuesday morning that his group is not going to put all its eggs in the lame duck basket.

Sarvis said his organization would — “early next week”— file at least one lawsuit in federal court in San Francisco to continue pressure for eliminating the ban on openly gay people in the military. He said the group would likely file two more lawsuits soon after that. Each lawsuit, he said, would represent the interests of different groups affected by the law — those on active duty, those who have been discharged and seek reinstatement, and those who would like to join the service.

Gates and Obama have both spoken out against lawsuits currently pending in the 9th Circuit seeking to challenge DADT — one from the Log Cabin Republicans (challenging the law on its face) and one from Air Force nurse Margaret Witt (challenging the law as applied). Both have been successful, thus far.

In an interview with ABC News, released Nov. 9, Gates said he thinks the end of DADT was “inevitable.”

“My hope, frankly,” he said, “is that … if we can make the case that having this struck down by the courts is the worst outcome, because it gives us no flexibility, that people will think I’m called a realist, a pragmatist. I’m looking at this realistically. This thing is gonna go, one way or the other.”

In the end, it may take more than just one showdown vote in the Senate. In addition to needing 60 votes to begin debate on the defense spending bill, SLDN’s Sarvis said Tuesday he expects Senate Democrats will need 60 votes to force a vote to end debate as well. Then a final version of the bill must be hammered out in a House-Senate conference committee and returned to both chambers for a final vote.

© 2010 Keen News Service

—  John Wright

Reid: Senate will take up DADT repeal next week

John Wright  |  Online Editor
wright@dallasvoice.com

Senate Majority Leader Harry Reid said Monday, Sept. 13, that he plans to bring to the floor next week the 2011 defense spending bill that includes an amendment to repeal “don’t ask don’t tell.” But it remains unclear whether there are enough votes to break a possible Republican filibuster of the bill or stave off unfriendly amendments.

Reid’s plan, first reported by The Washington Blade, represents a major breakthrough for repeal advocates, who fear that if the Senate doesn’t take up DADT repeal next week, it may not happen for several years.

Anti-repeal Republicans are widely expected to pick up seats in mid-term elections, and some senators have indicated they would consider only a temporary defense spending bill during the lame-duck session at the end of this year.

“We are both pleased and relieved that Sen. Reid has decided to schedule the defense authorization bill for floor time next week,” said Alexander Nicholson, founder and executive director of Servicemembers United. “We are fairly confident that we will have the 60 votes to break a filibuster of this bill. It would be shameful for lawmakers to vote to hold up an important and expansive piece of legislation like the defense authorization bill simply because of their opposition to one or two provisions within it.”

Servicemembers United and other groups advocating for DADT repeal had launched a major push in recent weeks, pleading with people to call their senators and urge them to take up the bill. Monday’s announcement comes on the heels of a federal judge’s landmark decision last week declaring the military’s ban on open service unconstitutional, as well as some high-profile DADT repeal advocacy from the likes of Lady Gaga.

“We applaud the Senate Majority Leader’s courage and his statement to bring the defense bill to the floor. Now, we must deliver,” said Aubrey Sarvis, Army veteran and executive director for Servicemembers Legal Defense Network. “Repeal proponents may well need 60 votes in the Senate to get to this important debate in September.  We are now in the final stretch and we must prevail. Repeal supporters should not stop calling their senators. Sen. John McCain has been a strong and vocal opponent from the start and it is critical that we beat back any filibuster threat, defeat attempts to strike repeal, and defeat any crippling amendments.”

The House passed the defense authorization bill, including Rep. Patrick Murphy’s DADT repeal amendment, in May. Even if the Senate passes the bill, the policy wouldn’t be repealed right away. After the Pentagon completes a study of the impacts of repeal, due Dec. 1, the president, the defense secretary and the chairman of the Joint Chiefs of Staff must certify that repeal won’t hurt military readiness.


—  John Wright

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

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

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

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

Three things:

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

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

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

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

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

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

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

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

—  John Wright

Do the Prop 8 Proponents Have Standing to Appeal?

Note from Joe: With so much discussion about the legal issues relating Prop. 8, we’re quite honored to have Prof. Cruz write this post for us. He’s a Professor of Law at the University of Southern California Gould School of Law and is widely regarded an expert on constitutional law and sex, gender, and sexual orientation law. He also writes regularly at his own blog, Cruz Lines. _____________

On Thursday, August 12, U.S. District Court Chief Judge Walker issued his decision  to deny an indefinite stay (here) of his ruling that Proposition 8 is unconstitutional (here).  The ,000 question now on many people’s minds is, will there be an appeal?  Governor Schwarzenegger and Attorney General Brown have stated that the government defendants will not appeal.  The official Prop 8 proponents, who intervened in the trial court to defend the measure, have already filed a lengthy “emergency motion” (here) with the U.S. Court of Appeals for the Ninth Circuit.

But the plaintiffs and Judge Walker have questioned whether the proponents even have the legal entitlement – “standing” – to appeal Walker’s ruling.  Although the answer is not clear, there is a strong argument that the proponents do not.   And if the Ninth Circuit and possibly the Supreme Court agree, then Judge Walker’s decision on the merits holding Proposition 8 unconstitutional and enjoining its enforcement will stand, restoring the freedom to marry to same-sex couples in California.

The question of the proponents’ standing to appeal, or lack thereof, is a complicated one, but it’s grounded in some basic constitutional principles.  Article III of the Constitution limits the federal courts to hearing “cases” or “controversies.”  For some years now the Supreme Court has interpreted this to mean that parties asking federal courts to act must have “standing.”  One constitutional requirement for standing is that the party suffer an injury sufficient to give him, her, it, or them an appropriate stake in the dispute.  This injury must be “concrete and particularized,” and it cannot be a mere “generalized grievance.”  It is not enough that people object to the government not following what they believe the law to be; the Supreme Court uses standing doctrine to limit the number of people who have the right to take up the time of the federal judiciary.  As part of this gatekeeping, the Court has said that the federal courts are not to be treated as “a vehicle for the vindication of the value interests of concerned bystanders.”  So, parties need to be injured in some way more than just passionately disapproving of what the government is doing if they’re going to be able to have the federal courts pass on their complaints.

These requirements of injury and standing apply in appeals and not just at trial.  So, in a case called Diamond v. Charles in 1986, the Supreme Court rejected an attempt by a pro-life doctor to appeal a decision enjoining parts of Illinois’s abortion-restricting law.  The state government was a defendant at trial, lost, and opted not to appeal.  Pro-life physician Eugene Diamond had intervened as a defendant at trial, and he tried to appeal.  When the case came before the Supreme Court, the Court dismissed his appeal.  The Court held that Diamond did not show that he had personally suffered or been imminently threatened with an adequate injury.  “The presence of a disagreement, however sharp and acrimonious it may be,” the Court ruled, “is insufficient by itself to meet Art. III’s requirements.”

The Prop 8 proponents are in the same position.  They intervened at trial to defend the measure they’d qualified for the California ballot because of their value interests in supporting mixed-sex only civil marriage and their sharp disagreement with the plaintiffs about Prop 8’s constitutionality or unconstitutionality, and because the governmental defendants refused to argue that Prop 8 was constitutional.  As in Diamond, the state was the original defendant, it lost, and it has chosen not to appeal; and now the proponents are trying to appeal to the Ninth Circuit.

In addition, in 1997 the Supreme Court decided Arizonans for Official English v. Arizona, a case dealing with ballot initiative proponents who wanted to defend their measure in the federal courts.  Because the Court held that subsequent developments made the suit challenging Arizona’s English-only initiative moot, it did not need to rule definitively on whether ballot proponents satisfy constitutional standing requirements.  But, in light of established standards for constitutional “injury,” the Supreme Court expressed “grave doubts” that the proponents would have standing in federal court.

Prop 8’s proponents therefore need some way to get around the force of the Diamond decision and the thoughtful dicta in Arizonans for Official English.  The basic gist of their argument is that, since California court decisions allow official ballot proponents to defend their measures in court, that should be enough special stake in challenges to ballot initiatives to satisfy the Constitution’s “case or controversy” requirement and thereby give them standing in federal court.  (The proponents’ standing or lack thereof didn’t really matter in the trial court because state defendants were present, and it was the state’s law that the plaintiff challenged; they therefore had a case or controversy.  The participation of the Prop 8 proponents at trial was like icing on the Article III cake, but we still need cake for the Ninth Circuit to have an appeal.)

The proponents are trying to rely on decisions allowing legislatures standing to defend their statutes as well as other dicta from Arizonans for Official English.  In Karcher v. May in 1987, the Supreme Court rejected an attempt by former New Jersey legislative leaders to appeal a decision enjoining a state law.  Like here, in Karcher the Attorney General and named governmental defendants refused to defend the law.  So the New Jersey legislature, represented by its then-officers, had intervened to defend the law and lost.  But the legislature refused to appeal, and the Supreme Court held that the officers who by then were former officers did not have standing themselves to appeal.  Arizonans for Official English characterized Karcher as “recogniz[ing] that state legislators have standing to contest a decision holding a state statute unconstitutional if state law authorizes legislators to represent the State’s interests.”

The Prop 8 proponents are arguing that they are like representatives of a state legislature, and that state law (here, California court decisions allowing ballot proponents to defend their measures) should suffice to satisfy constitutional standing requirements.  They argue that this state authorization to defend distinguishes them from the Arizona ballot proponents before the Supreme Court in Arizonans for Official English.

But Arizonans for Official English rejected the relevance of Karcher on the ground that the ballot proponents there “[we]re not elected representatives.”  The same is true of the Prop 8 proponents here.   Although Arizonans for Official English further noted that those proponents lacked state law authorization, the Supreme Court did not hold there or even say that this would be sufficient for constitutional standing.  At most the dictum there suggests that such authorization would be necessary.

This is where the uncertainty comes in.  Will the Ninth Circuit and/or Supreme Court rule that when a state authorizes ballot initiative proponents to defend successfully passed measures in state courts, that gives them enough stake in federal court suits challenging those measures to satisfy constitutional standing requirements?  Should they say that?

Arguably not.  In some of the cases relied upon by the proponents in their appeal to the Ninth Circuit, the state or federal legislatures had acted by majority vote to authorize particular parties to represent the entire legislature.  This afforded a significant limitation on the circumstances in which federal courthouse doors would be thrown open to people who merely disapproved of the way laws were being interpreted or enforced (or not enforced).  Moreover, in other cases relied on by the proponents, like U.S. v. Lovett decided by the Supreme Court in 1946 or Cheng Fan Kwok v. INS decided in 1968, the legislatures actually appeared simply as amicus curiae (“friends of the court”), not actual Article III parties; appellate jurisdiction over those cases was proper because the regular governmental defendants were in the case (even though they may have agreed with the plaintiffs there about aspects of the statutes’ unconstitutionality).  Granted, the Supreme Court’s 1983 decision in INS v. Chadha did allow Congress’s actual intervention as a defendant when the INS did not defend a challenged statute.  But the Court took pains to argue that the dispute there counted as a constitutional “case or controversy” wholly aside from Congress’s participation.

The Prop 8 proponents’ final argument for why they should be able to file an appeal in the Ninth Circuit claims that Judge Walker erred in denying Imperial County and related defendants to intervene in the suit, and that Imperial County would have Article III standing if that ruling were reversed.  It is not clear that Imperial County would have standing were it a party; Walker opined that it would not, and his reasoning seems sensible.

Regardless of the answer to Article III standing question for Imperial County, though, the fact remains that it is not a party.  And Judge Walker’s order denying intervention does not appear to be wrong.  Although Judge Walker did not rely on the tardiness of Imperial County’s motion to intervene, timeliness of a motion to intervene is a legal requirement for a non-party to join a case (whether intervention “as of right” or “permissive” intervention).  The plaintiffs made persuasive arguments that there was no objective justification for Imperial County to have waited as long as it did to move to intervene.  Judge Walker thought that the parties were not prejudiced by this tardiness and there was no evidence of bad faith, but it is not clear that those factors make Imperial County’s motion timely.

Moreover, Walker convincingly concluded that California law does not give local governments like counties interests separate from those of the state.  His analysis of the other elements of the legal test for intervention rights also seems right.  (The Prop 8 proponents’ motion to the Ninth Circuit makes too much of one poorly worded sentence where Walker wrote that “Imperial County’s ministerial duties surrounding marriage are not affected by the constitutionality of Proposition 8.”  But Walker’s opinion makes clear that he meant that the ministerial nature of the duties would not be affected whether or not Prop 8 were upheld or invalidated, and that he fully appreciated that the ministerial duty would be to issue marriage licenses as directed by the State Registrar, who will act based upon the outcome of the litigation challenging Prop 8.)

None of this means that it is impossible for the Ninth Circuit or the Supreme Court to identify new constitutional standing rules that would empower official ballot proponents like the Prop 8 proponents here, or that those courts could not reject Judge Walker’s eminently reasonable understanding of California law regarding issuance of marriage licenses and somehow find Imperial County to have both a right to intervene and Article III standing to pursue an appeal.  But if existing law is the touchstone, the plaintiff same-sex couples have the advantage here and the Prop 8 proponents should be held not to have standing to appeal in the absence of the state defendants’ deciding to do so themselves.




AMERICAblog Gay

—  John Wright