What now with Prop 8?

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

DAVID TAFFET  |  Staff Writer  taffet@dallasvoice.com

Chris Stoll
Chris Stoll

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

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

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

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

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

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

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

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

Upton said he liked the schedule.

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

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

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

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

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

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

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

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

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

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

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

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

Jenny Pizer
Jenny Pizer

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

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

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

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

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

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

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

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

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

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

“The stay keeps things simpler,” she said.

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

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

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

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

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

—  Michael Stephens

Lambda Legal’s Coleman named ED of Equality Texas

DAVID TAFFET | Staff Writer taffet@dallasvoice.com

Dennis Coleman

Dennis Coleman

Dennis Coleman will become executive director of Equality Texas and the Equality Texas Foundation on July 17.

Coleman will replace Paul Scott, who stepped down earlier this year to become executive director of AIDS Services of Austin.

For almost seven years, Coleman has served as regional director of Lambda Legal’s South Central office in Dallas. Much of his work built on the success the office had in June 2003 with the Lawrence v. Texas case, in which the U.S. Supreme Court overturned the state’s sodomy ban.

Coleman said he’ll get an apartment in Austin, but he and his partner Gregory Pynes will maintain their home in Dallas.

Chuck Smith, deputy director of Equality Texas, is based in Austin. He said the job of executive director entails travel throughout the state and can be done from Dallas as well as Austin.

Coleman said in his position with Lambda Legal, he covered eight states. He said his office manager kept day-to-day operations going while he was on the road. He foresees a similar relationship with Smith.

Although during the upcoming legislative session, Coleman said, “I’m fully committed to being in Austin.”

Equality Texas board chair Rob Scamardo said the search committee was looking for someone familiar with Texas, Texas politics and knew the challenges of advancing LGBT equality in the state.

Scamardo said he believes they found the perfect candidate in Coleman.

“He’s so well known and well respected throughout North Texas,” Scamardo said. “He can build that network in Houston. We would like to see our membership grow. He will be able to most immediately have an effect in North Texas.”
Coleman agreed that membership is a priority in his new position. “That runs parallel to what I was trying to do with Lambda Legal,” he said.

He also wants to raise the profile of Equality Texas, and change the perception of the group. He said many see it as an Austin organization. A third goal is to get activists motivated on statewide issues.

Coleman began his work in the LGBT community as a member of the Resource Center Dallas Speaker’s Bureau in the early 1990s. He joined the Black Tie Dinner committee. When hired by Lambda Legal, he was national chair of the Human Rights Campaign’s Board of Governors.

Scamardo said State Rep. Senfronia Thompson of Houston has talked to the organization about the importance of forging alliances with other minority groups. Scamardo said he looks forward to Coleman doing just that.

Toni Broaddus, executive director of the Equality Federation, made up of state equality organizations from around the country, agreed. Broaddus said she thinks that in addition to his experience, hiring an African-American executive director is a smart move for Equality Texas.

“The LGBT civil rights movement can’t succeed alone,” she said, “And part of the work we need to do is representing our entire community, and exploring the intersection between discrimination against LGBT people and discriminating against people of color.”

Coleman will not be the first person of color to lead the organization. Through the 1990s, Dianne Hardy Garcia, who is Hispanic, headed the Lesbian Gay Rights Lobby, which later changed its name to Equality Texas.

“Diversity is one of the things we struggle with in the leadership of our state equality organizations,” Broaddus said. “It’s a struggle to bring people of color and transgender people into leadership positions. It’s great news that we’re adding another person of color.”

But those who’ve worked with Coleman said he is simply the best choice for the job.

“I think that he brings a wealth of experience as a Texan,” Lambda Legal senior staff attorney Ken Upton said. “What makes him right for the job is he knows what works and what doesn’t work in Texas.”

Upton said he thinks Coleman’s Lambda Legal experience will give his advocacy a different tone. He said he expects Coleman will call when the legislative approach isn’t working and a legal approach might fare better.

Scamardo said two of the biggest challenges facing the new Legislature next year will be budget shortfalls and redistricting. The perennial challenge for the community is preventing anti-LGBT legislation from getting out of committee to a floor vote. But there’s also the hope of passing a pro-equality bill for the first time since 2001.

“Our hope is that we can push our key agenda item — the safe schools initiative — early in the session,” Scamardo said. He thinks the anti-bullying law has a good chance to pass before things get too contentious later in the session.

In the last session, the bill had enough votes to pass in the House and had Republican sponsorship. Working on this will be a natural fit.

“We’ve always had a collaborative relationship with Equality Texas, especially with the safe schools issue,” Coleman said.

This article appeared in the Dallas Voice print edition July 9, 2010.

—  Michael Stephens