BREAKING NEWS: Marriage equality comes to Kansas

Well, if Fred Phelps weren’t already a-spin in his grave, today’s ruling by U.S. District Judge Daniel D. Crabtree  in favor of marriage equality in Kansas must have turned ol’ Fred into a veritableScreen shot 2014-11-04 at 3.25.38 PM whirling dervish.

According to a press release from Freedom to Marry, “today’s win in Kansas is in line with the 10th Circuit Court of Appeals’ ruling in favor of the freedom to marry in Oklahoma and Utah, which took effect on October 6.  Kansas is one of the six states in the 10th Circuit, and presently the only one not yet issuing marriage licenses to same-sex couples.”

Marc Solomon, national campaign director of Freedom to Marry, said, “Yet another judge —  this time in Kansas — has found marriage discrimination to be unconstitutional, joining the nearly unanimous, bipartisan wave of pro-freedom to marry rulings in recent months. Attempts to delay the freedom to marry across the country are not only a waste of time and resources, but also prolong the harms and indignity that same-sex couples and their families continue to endure because of marriage discrimination. It is time for the remaining courts to finish the job and ensure the freedom to marry for all loving and committed couples in America.”

—  Tammye Nash

“Defining Marriage: A Debate!” at U of H tomorrow

Dr. Jennifer Roback Morse

Dr. Jennifer Roback Morse

One day we will get to the point where an University inviting guests to debate marriage equality will be greeted with the same scorn that an on-campus debate on women’s suffrage or whether or not African-Americans are 3/5 of a person would engender, but that day is not today. Just in time for the expected U.S. Court of Appeals for the Ninth Circuit ruling on Prop. 8  tomorrow, Feb. 7, the Federalist Society and Outlaw at the University of Houston present “Defining Marriage: A Debate!” at noon in the Bates Law Building room 109.

Dr. Jennifer Roback Morse, founder of the Ruth Institute, a project of the National Organization for Marriage, will be on hand to defend the continued prohibition against marriage equality. Mitchell Katine, who served as local counsel in Lawrence v. Texas (the Supreme Court case declaring Texas’ law against “homosexual conduct” unconstitutional) will defend marriage as a civil right, constitutionally guaranteed by equal protection under the law.

As a bonus the first 70 attendees to arrive will receive a free Chick-Fil-A sandwich and waffle fries, because we like our civil rights debated with a side of irony.

After the jump get a sneak peak at the kind of keen logical arguments to be expected from Dr. Morse:

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A beer by any other name…

On the long list of ridiculous Texas laws the alcoholic beverage code would have to take up about half the space (although that whole “no marriage equality” thing is pretty far up there), but it seems like at least a part of our antiquated system of booze laws is getting an update. Under current state law “beer” can contain no more than 4% alcohol by volume, anything greater and it must be labeled as “ale” or “malt liquor.” If a recent ruling by US District Court Judge Sam Sparks holds that’s about to change.

A group of brewers sued the state arguing that the current restrictions violated their free speech. The judge agreed, and in a hilarious ruling poked fun at the Texas Alcoholic Beverage Commission for thinking they can redefine words by legislative fiat, and gave a shout-out to Austin’s annual bat festival.  From Austin360.com:

“TABC’s argument, combined with artful legislative drafting, could be used to justify any restrictions on commercial speech. For instance, Texas would likely face no (legal) obstacle if it wished to pass a law defining the word ‘milk’ to mean ‘a nocturnal flying mammal that eats insects and employs echolocation.’ Under TABC’s logic, Texas would then be authorized to prohibit use of the word ‘milk’ by producers of a certain liquid dairy product, but also to require Austin promoters to advertise the famous annual ‘Milk Festival’ on the Congress Avenue Bridge.”

 

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What’s Shakin’ – Wings of Desire at MFAH, IRS to allow deductions for gender transition

Wings of Desire1. If you’re a fan of German films that are partially in French, the film oeuvre of Peter Faulk and sexy trapeze artists with existential angst then “Wings of Desire” is your kind of flick.  The 1987 Wim Wenders masterpiece tells the story of an Angel (Bruno Ganz) who, after watching humanity since the dawn of time, desires to become human so he can be with the woman he loves. “Wings of Desire” screens tonight at 7 pm at the Museum of Fine Art Houston (1001 Bissonnet).

2. Transgender Americans who undergo hormone therapy or receive gender realignment surgery may now be able to deduct the costs of those treatments on their taxes. According to GLAD, the Gay and Lesbian Advocates and Defenders, the IRS has issued an “action on decision” statement saying that the agency will acquiesce to an appeals court ruling allowing the deductions. GLAD cautions that medical deductions can still be audited and encourages anyone planning to deduct cost of transition medical expenses to rigorously document the medical necessity of treatments and consult with a tax professional when preparing return

3. Election day is tomorrow. If you’re one of the 58,345 people in Harris County who voted early, then good for you.  If not, you’ll want to visit HarrisVotes.org and find out where to go to cast your ballot.  Polls open at 7 am on Tuesday and close at 7 pm sharp.

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Judge to rule this week in Nikki Araguz case

Nikki Araguz

Transgender widow vows appeal if she loses case

JUAN A. LOZANO  |  Associated Press

WHARTON, Texas — The transgender widow of a Texas firefighter will likely learn next week whether his family’s request to nullify their marriage and strip her of any death benefits will be granted, a judge said Friday.

State District Judge Randy Clapp made the announcement after hearing arguments in a lawsuit filed by the family of firefighter Thomas Araguz III, who was killed while battling a blaze last year. The suit argues that his widow shouldn’t get any benefits because she was born a man and Texas doesn’t recognize same-sex marriage.

The widow, Nikki Araguz, said she had done everything medically and legally possible to show that she is female and was legally married under Texas law. She believes that she’s entitled to widow’s benefits.

“I believe the judge is going to rule in my favor,” Araguz said after the court hearing.

The lawsuit seeks control over death benefits and assets totaling more than $600,000, which the firefighter’s family wants to go to his two sons from a previous marriage. Voiding the marriage would prevent Nikki Araguz from receiving any insurance or death benefits or property the couple had together.

Thomas Araguz died while fighting a fire at an egg farm near Wharton, about 60 miles southwest of Houston, in July 2010. He was 30.

His mother, Simona Longoria, filed a lawsuit asking that her son’s marriage be voided. She and her family have said he learned of his wife’s gender history just prior to his death, and after he found out, he moved out of their home and planned to end the marriage.

But Nikki Araguz, 35, has insisted that her husband was aware she was born a man and that he fully supported her through the surgical process to become a woman. She underwent surgery two months after they were married in 2008.

Longoria’s attorney, Chad Ellis, argued that Texas law — specifically a 1999 appeals court ruling that stated chromosomes, not genitals, determine gender — supports his client’s efforts to void the marriage.

The ruling upheld a lower court’s decision that threw out a wrongful death lawsuit filed by a San Antonio woman, Christie Lee Cavazos Littleton, after her husband’s death. The court said that although Littleton had undergone a sex-change operation, she was actually a man, based on her original birth certificate, and therefore her marriage and wrongful death claim were invalid.

Ellis presented medical and school records that he said showed Nikki Araguz was born without female reproductive organs and that she presented herself as a male while growing up and going to school. He also said her birth certificate at the time of her marriage indicated she was a man.

“By law, two males cannot be married in this state,” Ellis told the judge.

Nikki Araguz, who was born in California, did not change her birth certificate to reflect she had become a female until after her husband’s death, said Edward Burwell, one of the attorneys for Thomas Araguz’s ex-wife, Heather Delgado, the mother of his two children.

But one of Nikki Araguz’s attorneys, Darrell Steidley, said that when his client got her marriage license, she presented the necessary legal documents to show she was a female. He also noted changes made in 2009 to the Texas Family Code that allowed people to present numerous alternatives to a birth certificate as the proof of identity needed to get a marriage license. That was an example, he argued, of the state trying to move away from the 1999 appeals court ruling.

The changes in 2009 allowed transgendered people to use proof of their sex change to get a marriage license. The Texas Legislature is currently considering a bill that would prohibit county and district clerks from using a court order recognizing a sex change as documentation to get married.

After the hearing, the firefighter’s family and attorneys for his ex-wife criticized plans by Nikki Araguz to star in a reality television dating show and implied she was only interested in money and fame that the case would bring her.

“That is absurd,” Nikki Araguz said in response. “I’m after my civil equality and the rights that I deserve as the wife of a fallen firefighter.”

If the judge rules against the firefighter’s family in their motion for a summary judgment, the case would then proceed to trial. Araguz said if the judge rules against her, she would appeal, all the way to the U.S. Supreme Court if necessary.

—  John Wright

Maggie Gallagher should be championing religious expression ruling. But instead…

If there’s anyone who should be defending the Snyder v. Phelps ruling, it’s Maggie Gallagher. All the time, we hear her talk about the need for more and greater defense of religious freedom, even if those freedoms come at the expense of LGBT people’s desire to feel welcome. While “protecting marriage” is her stated cause, defending religious expression is at least in the sidecar.

Yet Maggie is not only standing in opposition — she is actually outraged by the majority 8-1 opinion, as authored by Chief Justice John Roberts:

Burials happen in public (we don’t actually let people bury their dead on their own property any more). But they are not public events.

These regulations designed to circumvent Fred Phelps’ evil and irrational plans, are not directed at the content of speech, they are reasonable time and place restrictions that any decent society should respect.

The Constitution is not a suicide pact.

The Supreme Court Just Went Off the Deep End [NOM Blog]

Some facts:

(A) The Phelps family was 1000+ feet away, on a public sidewalk. They were not at the burial.

(B) They did abide by all time and space restrictions placed upon them, as they always do. They actually worked with law enforcement, again, as they’re wont to do.

(C) Mr. Snyder didn’t even know of their messaging until after the fact — he learned about it from TV and WBC’s own website writings.

(D) While most all of us with their views, it’s undeniable that they were coming from their belief in God. Everything WBC says comes from their view of God. The fair public expression of that view is exactly what Maggie should be defending! This is what Maggie does defend, rhetorically, as it applies to other religious expression.

(E) No, the constitution is not a suicide pact. That is why we are protecting its most crucial and cherished demands, even when we are the most targeted by it (Westboro has directly targeted this site on a number of occasions).

(D) It’s pretty rich being educated on the Constitution by someone who was at the forefront of amending our nation’s most precious federal document so that it specifically targets gay citizens’ right to marry under civil law.

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*SEE ALSO: A great piece from Jim Burroway: The First Amendment Lives [BTB]




Good As You

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NCLR Legal Analysis Of The Ninth Circuit Prop 8 Ruling

BLEND EXCLUSIVE: Trial analysis by the National Center For Lesbian Rights (NCLR) Attorney Shannon Minter.


By Shannon Minter, Esq.

National Center for Lesbian Rights Legal Director

Today brings a new development in Perry v. Schwarzenegger, the federal constitutional challenge to California’s Proposition 8, which amended the California Constitution to strip same-sex couples of the freedom to marry.  Thumbnail Link: NCLR's Legal Director Shannon MinterPerry is currently on appeal before the Ninth Circuit Court of Appeals, the federal appeals court that covers California. In a ruling issued this morning, the Ninth Circuit denied Imperial County’s attempt to intervene in the case. The Ninth Circuit also asked the California Supreme Court to clarify whether, under California law, the group that placed Prop 8 on the ballot has a legal right to appeal District Court Judge Vaughn Walker’s decision that Prop 8 is unconstitutional.

To understand what today’s ruling means, it is helpful to look back on the history of the Perry case. In May 2009, two same-sex couples filed suit in the U.S. District Court for the Northern District of California. Judge Walker permitted Prop 8′s official supporters to intervene in the case as defendants, and also permitted the City and County of San Francisco to intervene as a plaintiff to represent its unique governmental interest in marriage equality. On the eve of trial, Imperial County also filed a motion asking to intervene in the case as a defendant.

After a three-week trial in January 2010, Judge Walker ruled in August 2010 that Prop 8 violates the United States Constitution’s guarantees of due process and equal protection of the laws. Judge Walker also ruled that Imperial County did not have the right to intervene as a defendant.

California’s Governor and Attorney General decided not to appeal that ruling because they agreed that Prop 8 was unconstitutional. The supporters of Prop 8 and Imperial County both filed appeals with the Ninth Circuit.

At oral argument on December 6, 2010, the Ninth Circuit panel asked all sides questions about whether the official supporters of Prop 8 have the legal right to appeal Judge Walker’s decision. The parties also addressed whether Imperial County should have been allowed to intervene in the case as a defendant.

Today, the Ninth Circuit panel upheld Judge Walker’s decision not to allow Imperial County or its Deputy Clerk to intervene in the case. In order to intervene, Imperial County would have needed to show that it had a significant interest at stake. The Ninth Circuit explained in today’s opinion that Imperial County did not have any interests that would be sufficiently affected by the outcome of this lawsuit.

In addition, the Ninth Circuit made clear in today’s ruling that if the supporters of Prop 8 do not have the legal right to appeal Judge Walker’s decision that Prop 8 is unconstitutional, the appeal is over. In order to answer that question, the Ninth Circuit has asked the California Supreme Court to clarify whether California law gives Prop 8′s supporters the right to pursue an appeal when the state’s official representatives, after carefully evaluating the interests of the entire state, have made a considered decision not to appeal.

Ultimately, the Ninth Circuit must decide whether the Prop 8 supporters have a right to appeal under federal law – that is, whether they have “standing” to appeal.  The California Supreme Court may hold that California law does not give initiative sponsors the right to override the litigation decisions of the state’s official representatives.  If so, then the Ninth Circuit likely will hold that the Prop 8 supporters do not have standing.  That would mean that the Ninth Circuit would dismiss the appeal, Judge Walker’s ruling would stand, and same-sex couples would once again be able to marry in California.  

Alternatively, if the California Supreme Court were to hold that California law gives initiative sponsors the extraordinary power to bring an appeal over the objections of the Attorney General and the Governor, the Ninth Circuit would still have to decide whether Prop 8′s supporters meet all of the other criteria to have standing under federal law.  If it ultimately holds that the Prop 8 supporters have standing, then the Ninth Circuit could reach the merits of Judge Walker’s ruling that Prop 8 is unconstitutional.      

The next step after today’s ruling is for the California Supreme Court to decide whether it will accept the Ninth Circuit’s request. If it does so, it will then get briefs from both sides, and might hear oral argument as well before ruling. There is no set timeline for the California Supreme Court to rule.  In previous cases, it has taken the California Supreme Court up to two years to answer a question sent to it by the Ninth Circuit. Given the importance of this case and the real harm that inequality causes to LGBT people every day, however, we are hopeful that the Court will act quickly to restore fairness and equality for same-sex couples in California.

~~~~~

Related:

* Visit the Blend for exclusive legal analysis of Federal Prop 8 trial by NCLR

* Shannon Minter: Perry v. Schwarzenegger Proceedings, Day 1

* Shannon Minter: Perry v. Schwarzenegger Proceedings, Day 2

* Shannon Minter: Perry v. Schwarzenegger Proceedings, Day 3

* Shannon Minter: Perry v. Schwarzenegger Proceedings, Day 4

* Shannon Minter: Perry v. Schwarzenegger Proceedings, Day 5

* Shannon Minter: Perry v. Schwarzenegger Proceedings, Day 6

* Shannon Minter: Perry v. Schwarzenegger Proceedings, Day 7

* Shannon Minter: Perry v. Schwarzenegger Proceedings, Day 8

* Shannon Minter: Perry v. Schwarzenegger Proceedings, Day 9

* Shannon Minter: Perry v. Schwarzenegger Proceedings, Day 10

* Shannon Minter: Perry v. Schwarzenegger Proceedings, Day 11

* Shannon Minter: Perry v. Schwarzenegger Proceedings, Day 12

* Key commentary from the PHB Shannon Minter live blog on the fed Prop 8 trial

* NCLR Analysis: Closing Arguments For Perry v. Schwarzenegger

* NCLR Analysis: Perry v. Schwarzenegger Ruling

* NCLR Analysis: Ninth Circuit Court Of Appeals Hearing On Perry v. Schwarzenegger
Pam’s House Blend – Front Page

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Lambda Legal slams Obama administration for appealing Witt’s DADT ruling

Via press release, here’s the very strong statement from the Legal Director of Lambda Legal, Jon Davidson (with my emphasis added):

“We congratulate Major Witt on her return to service and our colleagues at the ACLU of Washington who represented her. However, the decision to appeal by the Department of Justice leaves us wondering just what part of ‘Don’t Ask, Don’t Tell, Don’t Pursue’ does the Obama Administration not get? Notwithstanding President Obama’s concession that the military’s current anti-gay policies are hurting national security, his administration is continuing to pursue the discharge of a decorated officer who did not ‘tell,’ who would not have even been investigated under the military’s current guidelines, and whose discharge has been found not to promote unit cohesion or morale. While it is good that the administration decided not to seek a stay of Major Witt’s reinstatement, there was no necessity for an appeal to be filed, contrary to suggestions of Obama Administration representatives. After a trial, Major Witt was found to be ‘an exemplary officer,’ ‘an effective leader,’ ‘a caring mentor’ and ‘an integral member of an effective team,’ whose ‘loss within [her] squadron resulted in a diminution of the unit’s ability to carry out its mission.’ Filing this appeal and refusing to suspend discharges pending the repeal of the military’s current anti-gay policy is a significant failure on the part of our nation’s Commander in Chief.

We agree with Lambda Legal. Robert Gibbs was wrong. There was no necessity for this appeal to be filed. It’s is a significant failure.

Sign our letter to the President, urging him to become actively involved in the effort to pass the Defense bill with the DADT language. We’re running out of time — and we don’t need another significant failure. The letter is here.




AMERICAblog Gay

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Ninth Circuit Grants Stay of DADT Ruling Pending Appeal

The Ninth Circuit Court of Appeals has granted the government its request for a stay in the injunction barring enforcement of 'Don't Ask, Don't Tell' pending appeal, the AP reports:

Dadt "Monday's decision by a three-judge panel of the 9th U.S. Circuit Court of Appeals means gay Americans who disclose their sexual orientations still can't enlist in the armed forces and can be discharged. The panel granted the government's request for a stay while it challenges the trial court's ruling that the ban on openly gay service members is unconstitutional. The same panel imposed a temporary hold keeping 'don't ask, don't tell' in place last week. Monday's ruling also heightens pressure on the Obama administration to persuade the U.S. Senate to repeal the 1993 law before a new Congress is sworn in."

The Wonk Room notes:

In an eight-page decision, the justices identify “three reasons that persuade us to grant a stay pending appeal”:

- First, Acts of Congress are presumptively constitutional, creating an equity in favor of the government when balancing the hardships in a request for a stay pending appeal.

- Second, “‘judicial deference . . . is at its apogee’ when Congress legislates under its authority to raise and support armies.”

- Third, the district court’s analysis and conclusions are arguably at odds with the decisions of at least four other Circuit Courts of Appeal: the First, Second, Fourth, and Eighth.

Here's the order:

DADT Stay Order


Towleroad News #gay

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Judge: No Stay in DADT Ruling

U.S. district judge Virginia A. Phillips ruled Tuesday that the Justice Department has not met the standards for a stay of her injunction against “don’t ask, don’t tell,” calling its arguments “unpersuasive.” The government is expected to appeal.
Advocate.com: Daily News

—  John Wright