Guide to oral arguments on Prop 8, DOMA

MARRIAGE-AND-SUPREME-COURT-LOGO

Editor’s Note: The following is the fourth in a four-part series to prepare readers for what to expect March 26 and 27 when the U.S. Supreme Court takes up the marriage equality cases.

LISA KEEN | Keen News Service

Two of the LGBT civil rights movement’s most important cases come before the U.S. Supreme Court on Tuesday and Wednesday, March 26 and 27 and, regardless of the outcome, they will almost certainly be the most watched oral arguments ever on an LGBT issue.

A “United for Marriage” coalition of national and local LGBT groups have planned a number of events and rallies for the steps of the Supreme Court building and have organized buses from several cities to bring in participants. (CLICK HERE FOR INFO ON RALLIES IN NORTH TEXAS) The rallies are likely to enjoy a great deal of visibility on national TV screens, as the high court does not provide for any live camera or web broadcast of the arguments themselves.

There are only 400 seats in the courtroom, according to the public information office: 240 are for the public, 36 for journalists, and the rest (124) for guests of the justices and members of the Supreme Court bar. The court also provides a few more seats for journalists in an adjacent “hallway” with obstructed views of the courtroom, and it has 30 seats in the public section where visitors can watch for three to five minutes each before being rotated out.

Readers who are eager to absorb the arguments themselves but are unable to snare a courtside seat have two options: an audio recording and a transcript –both available at www.supremecourt.gov. (Click on “Oral argument” and choose either “Argument transcript” or “Argument recording.”) The public information office says both will be available by noon Dallas time on Tuesday and 1 Dallas time on Wednesday.

Some of the players are already well known to readers, some are not. Certainly, the key issues in the case have occupied a central focus for the LGBT community for many years now and the resolution of both cases are of enormous consequence to LGBT people throughout the country.

To help readers prep for the argument and the expected crush of media reporting on the cases, the following is a quick guide to the issues, the attorneys, and what to listen for:

Tuesday, March 26 at 10 a.m. EDT: Proposition 8:

Case name: Hollingsworth v. Perry (Case No. 12-144)

Issue in play: Whether the voters of California have a right to amend their state constitution to prevent same-sex couples from obtaining marriage licenses the same as male-female couples. A decision, if rendered, could potentially affect other states with such bans.

Question posed by the court: Whether Proposition 8 violates the equal protection clause of the Fourteenth Amendment. (The Fourteenth Amendment prohibits states from depriving any person of “the equal protection of the laws.”)

Additional question posed, on standing: Whether the Yes on 8 coalition that campaigned for passage of Proposition 8 has legal standing to appeal the lower court decision, given that California elected officials chose not to appeal.

Plaintiffs in the original lawsuit: Two California couples who seek the right to marry: Kristin Perry and Sandra Stier of Berkeley and Paul Katami and Jeff Zarrillo of Burbank.

Petitioner bringing appeal: Dennis Hollingsworth is a former state senator from California who helped lead protectmarriage.com, a coalition of groups that established the Yes on 8 campaign. He and other officials brought the appeal after losing in the Ninth Circuit U.S. Court of Appeals.

Attorneys arguing merits and standing:

For Yes on 8 and for Proposition 8: Charles Cooper

For same-sex couples and against Proposition 8: Ted Olson

For the U.S. and against Proposition 8: Solicitor General Donald Verrilli

History behind the case: This dispute began more than 13 years ago, when voters first approved Proposition 22 to limit marriage to heterosexual couples only. That vote was challenged in state court and, the California Supreme Court ruled in 2008 that such a restriction violated the state constitution’s guarantee of equal protection. Opponents of allowing gays to marry came up with another initiative, Proposition 8, to amend the state constitution. Proposition 8 passed that same year, but supporters of same-sex couples, via the newly minted American Foundation for Equal Rights, filed suit in 2009 in federal court, saying the ban violated the equal protection rights of gays under the federal constitution.

The litigation made a major media splash at the time because AFER’s lead attorneys were former George W. Bush Solicitor General Ted Olson and renown liberal litigator David Boies. In the 2000 election, Olson and Boies had been opposing attorneys in the Supreme Court case deciding who won the 2000 presidential election. The AFER lawsuit also garnered considerable attention because much of the LGBT legal infrastructure was against it. But during a three-week trial in San Francisco federal court, the community came onboard and plaintiffs won. U.S. District Court Chief Judge Vaughn Walker (who came out as gay after retirement) issued a decision in August 2010, saying 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 no compelling reason for the state to deny same-sex couples the fundamental right to marry.

State officials in California chose not to appeal the decision, but the Yes on 8 coalition was allowed to do so (creating the question of legal standing). In February 2012, a three-judge panel of the Ninth Circuit U.S. Court of Appeals upheld Walker’s decision but on much more narrow grounds –it said the U.S. Supreme Court’s 1996 ruling in Romer v. Evans precluded voters from withdrawing the right to marry from same-sex couples in California. But the Supreme Court is asking for arguments on the broader question of whether Proposition 8 violates the constitutional right to equal protection.

Wednesday, March 27, 10 a.m. EDT: Defense of Marriage Act:

Case name: U.S. v. Windsor (Case No. 12-307)

Issue in play: Whether the federal government can deny to citizens who are legally married to a same-sex partner the same benefits it provides citizens who are legally married to an opposite sex partner. A General Accounting Office study in 2004 found that DOMA affects 1,138 federal statutory provisions of the United States Code in which marital status is a factor in determining or receiving benefits, rights, and privileges.

Question posed by the court: Whether Section 3 of DOMA violates the equal protection clause of the Fourteenth Amendment. The Fourteenth Amendment prohibits states from depriving any person of “the equal protection of the laws.”
Additional question posed, on standing: The Supreme Court has posed two questions: Whether the executive branch’s agreement with the Second Circuit decision in Windsor v. U.S. (that DOMA is unconstitutional) precludes the Supreme Court from ruling in the case, and whether the House Bipartisan Legal Advisory Group (BLAG) has standing to defend DOMA in court.

Plaintiff in the original lawsuit: Edith Windsor is the surviving spouse of Thea Spyer. The couple had been together for 40 years and married in Canada in 2007. Spyer died in 2009, before New York State allowed marriage licenses for same-sex couples. The U.S. Internal Revenue Service would not allow Windsor to take the routine marital estate tax deduction and, instead, demanded she pay more than $360,000 in taxes on the estate she shared with her spouse.

Petitioner bringing appeal: The U.S. brings the appeal to defend the administration’s obligation to enforce DOMA. But the real defender of DOMA in this case is a legal team hired by the Republican-led House legal office (aka BLAG).

Attorneys arguing standing:

At the invitation of the court, against standing: Vicki C. Jackson

For the U.S. and against standing: Deputy Solicitor General Sri Srinivasan

For BLAG and for standing: Paul Clement

Attorneys arguing merits:

For BLAG and for DOMA: Paul Clement

For the U.S. and against DOMA: Solicitor General Donald Verrilli

For plaintiff Windsor and against DOMA: Roberta Kaplan

History behind the case: The Windsor lawsuit is one of seven challenges with appeals pending before the Supreme Court against DOMA, the law approved by Congress in 1996 to head off what was then a burgeoning movement toward achieving equal rights to marriage. The law has two sections: Section 2 says that no state “shall be required” to recognize a marriage license to a same-sex couple granted by another state. Section 3 says that the federal government can give recognition to marriage licenses of male-female couples only. Section 3 is the only part of DOMA under contention in the lawsuits.

In December, the Supreme Court agreed to hear U.S. v. Windsor. The Windsor case was originally filed by the ACLU with the help of Windsor’s attorney, Roberta Kaplan at the law firm of Paul, Weiss, Rifkind, Wharton & Garrison in New York, and Pamela Karlan, co-director of the Supreme Court Litigation Clinic at Stanford Law School. Karlan, who is openly gay, has been mentioned as a potential candidate for a Supreme Court nomination.

The Second Circuit of the U.S. Court of Appeals, the first federal appeals court to examine DOMA under heightened scrutiny, ruled last October that DOMA violates the equal protection clause of the constitution.

Defending DOMA is former George W. Bush Solicitor General Paul Clement, an attorney hired by the Republican-led Bipartisan Legal Advisory Group (BLAG). House Speaker John Boehner called for Clement’s help after directing BLAG’s General Counsel to begin defending DOMA in court after the Obama administration announced it believes the law to be unconstitutional. The Obama administration is obliged to enforce the law (hence the IRS demand that Windsor pay the taxes), but it has refused since February 2011 to defend the law as constitutional.

What to listen for in the arguments: In both cases, Justice Anthony Kennedy’s comments and questions will be watched with a great deal of interest. Kennedy wrote the opinion in Romer and in the 2003 Lawrence v. Texas decision striking down sodomy laws. Both sides consider him the key vote to sway in order to consolidate a five-vote majority.

The critical points in Kennedy’s decision in Romer were that Colorado Amendment 2, prohibiting laws that banned discrimination based on sexual orientation, had “the peculiar property of imposing a broad and undifferentiated disability on a single named group,” that “its sheer breadth is so discontinuous with the reasons offered for it that the amendment seems inexplicable by anything but animus,” and that “it is a classification of persons undertaken for its own sake, something the Equal Protection Clause does not permit.”

But Kennedy has been listing toward the conservative wing of the court recently, leading its dissent against President Obama’s Affordable Care Act and leading its majority ruling to allow corporations to contribute without limits to political campaign activities. And in a speech in Sacramento March 6, he told reporters he thinks it is a “serious problem” that the Supreme Court is being asked to settle controversial issues facing a democracy.

What to watch for on television: Because the court does not allow cameras in the courtroom, rallies outside the Supreme Court will almost certainly get considerable air time.

A “United for Marriage” coalition of national and local LGBT groups has planned events outside the Supreme Court building beginning Monday, March 25, with a “Youth Lights for Equality” candlelight vigil in front of the Supreme Court from 6:30 to 8 p.m. On Tuesday morning, at 7:15 a.m., there will be an interfaith “Prayer for Love & Justice” service, followed by a procession at 8:30 a.m. to the Supreme Court building. At 8:30 a.m. Tuesday, there will be a “United for Marriage Rally” on the steps of the Supreme Court. And on Tuesday evening, at 5:30, a “Parting of the Waters” seder.

The “United for Marriage Rally” will return at 8:30 a.m. on Wednesday on the front steps of the Supreme Court.

After the argument is over each day –shortly after 11 a.m. on Tuesday and after 11:50 a.m. on Wednesday, EDT– attorneys from both sides of the argument that day typically convene impromptu press conferences on the front steps of the Supreme Court. They express optimism about the outcome, compliment the justices for asking “good questions,” and explain the importance of the cases in short sound bites. One thing they don’t typically do is predict the outcome.

© Copyright 2013 by Keen News Service. All rights reserved.

…………………

PART I: Standing in the way: A look at the standing issues in both cases that could determine whether the court makes a decision or passes on either or both. (March 15)

PART II: President’s Punch: How strong a position has the Obama administration taken in both cases to push for the most decisive victory on marriage equality? (DallasVoice.com)

PART III: Friends and foes at the bar: What groups have lined up for marriage equality and which have lined up against? What have the gay legal groups submitted? (March 22)

—  John Wright

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

BREAKING: Prop 8 ruling expected Tuesday

The U.S. Court of Appeals for the Ninth Circuit is expected to rule Tuesday on the constitutionality of Proposition 8, California’s same-sex marriage ban. Below is the official announcement from the court’s public information office. Chris Geidner at Metro Weekly reports:

The long anticipated ruling is expected to address three issues: (1) whether former U.S. District Court Judge Vaughn Walker should have recused himself from hearing the case because he is gay and had a long-time partner with whom he was not married; (2) whether the proponents of Proposition 8 have the right to appeal Walker’s decision striking down Proposition 8 as unconstitutional when none of the state defendants chose to do so; and (3) whether, if Walker did not need to recuse himself and the proponents do have the right to appeal, Walker was correct that Proposition 8 violates Californians’ due process and equal protection rights guaranteed in the U.S. Constitution.

—  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

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: 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

2 years after our 'Summer of Love' began, closing arguments in the federal Prop 8 trial

Screen shot 2010-06-16 at 9.06.14 AM

It was two years ago this week that Dallas Voice printed the above front page (designed by yours truly), and precisely two years ago tomorrow (June 17, 2008) that same-sex marriages began in California following a state Supreme Court ruling that made them legal. But if you’ll recall, our “new Summer of Love” turned into a winter of discontent, after California voters passed Proposition 8 in November. Then last May, the California Supreme Court upheld Prop 8, prompting a federal lawsuit challenging the constitutionality of the same-sex marriage ban.

Beginning at noon today Dallas time, a California federal district judge will hear closing arguments in Perry v. Schwarzenegger, the case brought by the American Foundation for Equal Rights. But it’s highly unlikely that Judge Vaughn Walker, whose ruling could take weeks, will have the final say. The case is expected to proceed to the U.S. Supreme Court within a few years.

Today’s closing arguments will not be broadcast, but if you want to follow along, try the Courage Campaign’s Prop 8 Trial Tracker or The Advocate’s live coverage. And of course, stay tuned to Instant Tea for updates. On that note, here’s one that just came across: The San Francisco Chronicle is reporting that the sponsors of Prop 8 have made a last-minute request to have the judge revoke state recognition of the 18,000 same-sex marriages that were performed from June-November of 2008.

—  John Wright

Prop 8 trial continues

In the Proposition 8 trial in California on Wednesday, Ryan Kendall testified about having been forced to undergo “conversion therapy” by his parents. Kendall, 26, said his parents discovered he was gay when he was 13. They sent him to the National Association of Research and Therapy of Homosexuality in Encino where he became suicidal. He was asked whether the therapy made any difference.

“No, I was as gay as when I started,” he said.

The defense only asked him a few questions but tried to get him to admit that the therapy would work on people who attended voluntarily.

“It is my experience that people don’t want to go to programs like NARTH,” he said.

Stanford professor Gary Segura testified that gays and lesbians lack political clout and that no group has been the target of more ballot initiatives than the LGBT community. He pointed out that Don’t ask, don’t tell and the Defense of Marriage Act were put in place during the Clinton administration and Obama has not been a reliable ally.

“We have to look at the disconnect between rhetoric and action,” he said.

The plaintiffs said they have two more witnesses to put on the stand.

— from various press reports

—  David Taffet

Prop 8 trial continues in California

The mayor of San Diego Jerry Sanders, a Republican, testified in the Proposition 8 trial in California on Tuesday. He talked about his conversion from marriage equality opponent to proponent. Sanders’ daughter is a lesbian.

Testimony also included expert witness Lee Badgett, a University of Massachusetts professor, who cited a study of how same-sex marriage affects opposite-sex marriage. According to studies, the rate of heterosexual marriage has not changed in places with same-sex marriage. So how does same-sex marriage affect opposite-sex marriage? Not at all.

In testimony from Sanders and Badgett, the question of civil unions and domestic partnerships was addressed. Why wouldn’t gay and lesbian couples just accept these and prefer marriage? Because anything less than marriage makes them feel like second-class citizens.

—  David Taffet