Experts: Prop 8 ruling may dodge high court

9th Circuit panel crafts its decision striking down California amendment narrowly, avoids question of whether other states can ban marriage

Prop8

DAY OF DECISION | Supporters of marriage equality react outside the courthouse after a federal appeals court declared California's ban on same-sex marriage unconstitutional on Tuesday, Feb. 7 in San Francisco. (AP Photo/San Francisco Chronicle, Lea Suzuki)

LISA LEFF  |  Associated Press

SAN FRANCISCO — Conservative critics like to point out that the federal appeals court that just declared California’s same-sex marriage ban to be unconstitutional has its decisions overturned by the U.S. Supreme Court more often than other judicial circuits, a record that could prove predictive if the high court agrees to review the gay marriage case on appeal.

Yet legal experts seemed to think the panel of the San Francisco-based 9th U.S. Circuit of Appeals that struck down the voter-approved ban on Tuesday, Feb. 7 purposefully served up its 2-1 opinion in a narrow way and seasoned it with established holdings so the Supreme Court would be less tempted to bite.

The appeals court not only limited the scope of its decision to California, even though the 9th Circuit also has jurisdiction in eight other Western states, but relied on the Supreme Court’s own 1996 decision overturning a Colorado measure that outlawed discrimination protections for gay people to argue that the voter-approved Proposition 8 violated the civil rights of gay and lesbian Californians.

That approach makes it much less likely the high court would find it necessary to step in, as it might have if the 9th Circuit panel had concluded that any state laws or amendments limiting marriage to a man and a woman run afoul of the U.S. Constitution’s promise of equal treatment, several analysts said.

“There is no reason to believe four justices on the Supreme Court, which is what it takes to grant (an appeal) petition, are champing at the bit to take this issue on,’’ University of Michigan law school professor Steve Sanders said. “The liberals on the court are going to recognize this was a sensible, sound decision that doesn’t get ahead of the national debate … and I don’t think the decision would be so objectionable to the court’s conservatives that they would see a reason to reach out and smack the 9th Circuit.’’

Lawyers for the coalition of religious conservative groups that qualified Proposition 8 for the November 2008 ballot and campaigned for its passage said they have not decided whether to ask a bigger 9th Circuit to rehear the case or to take an appeal directly to the Supreme Court.

However, they said they were optimistic that if the high court accepts an appeal, Tuesday’s ruling would be reversed.

“The 9th Circuit’s decision is completely out of step with every other federal appellate and Supreme Court decision in American history on the subject of marriage, but it really doesn’t come as a surprise, given the history of the 9th Circuit, which is often overturned,’’ Andy Pugno, the coalition’s general counsel, said in a fundraising letter to Proposition 8’s supporters. “Ever since the beginning of this case, we’ve known that the battle to preserve traditional marriage will ultimately be won or lost not here, but rather in the U.S. Supreme Court.’’

Regardless of their next steps, gay and lesbian couples were unlikely to be able to get married in California anytime soon. The 9th Circuit panel’s ruling will not take effect until after the deadline passes in two weeks for Proposition 8’s backers to appeal to a larger panel, and the earliest the Supreme Court could consider whether to take the case would be in the fall.

Judge Stephen Reinhardt, who was named to the 9th Circuit by President Jimmy Carter and has a reputation as the court’s liberal lion, wrote Tuesday’s 80-page majority ruling with concurrence from Judge Michael Daly Hawkins, an early appointee of President Bill Clinton. Judge Randy Smith, who was the last 9th Circuit judge nominated by President George W. Bush, dissented.

In tailoring the decision to apply only to California, Reinhardt cited two factors that distinguish Proposition 8 from the one-man, one-woman marriage laws and constitutional amendments in the other 9th Circuit states and that he said demonstrate that it “serves no purpose, and has no effect, other than to lessen the status and humanity of gays and lesbians.’’

The first is that California since 2005 has granted same-sex couples all the rights and benefits of marriage if they register as domestic partners.

The second is that five months before Proposition 8 was enacted as a state constitutional amendment, the California Supreme Court’s Court had legalized same-sex marriage by striking down a pair of laws that had limited marriage to a man and a woman. California is the only state, therefore, where gays have won the right to marry and had it stripped away.

The amendment’s “singular’’ work of denying gay Californians the designation of marriage while leaving in place domestic partnerships proves that Proposition 8 deprives same-sex relationships of society’s dignity and respect, Reinhardt wrote.

“A rose by any other name may smell as sweet, but to the couple desiring to enter into a committed lifelong relationship, a marriage by the name of ‘registered domestic partnership’ does not,’’ he said. “We are excited to see someone ask, ‘Will you marry me?’, whether on bended knee in a restaurant or in text splashed across a stadium Jumbotron. Certainly, it would not have the same effect to see, ‘Will you enter into a registered domestic partnership with me?’”

The opinion goes on to draw parallels between California’s same-sex marriage ban and the Colorado opinion the Supreme Court struck down on a 6-3 vote after concluding that it was based on moral disapproval of gays. Justice Anthony Kennedy wrote the majority opinion in that case, known as Romer v. Evans, and if the court agrees to take up Proposition 8, the similarities could hit the “sweet spot’’ that might persuade him to side with four other justices in upholding the 9th Circuit, said Douglas NeJaime, an associate professor at Loyola Law School in Los Angeles.

“Everyone is looking to Justice Kennedy, assuming that Justice Kennedy would not issue a sweepingly bad decision for gay rights, and yet people don’t know if he is ready to go so far as to say nationwide same-sex couples can get married,’’ NeJaime said. “I think the opinion evidences a real savviness about the posture of this case and its position in the trajectory of a national movement for marriage for same sex couples.’’

Smith, the lone dissenting judge, disagreed that Proposition 8 necessarily served no purpose other than to treat gays and lesbians as second-class citizens. He pointed out that its backers claimed it could serve to promote responsible child-rearing among opposite-sex couples, and said courts were obligated to uphold laws in the face of civil rights challenges unless they were “clearly wrong, a display of arbitrary power (or) not an exercise of judgment.’’

“There is good reason for this restraint,’’ Smith said.

This article appeared in the Dallas Voice print edition February 10, 2012.

—  Kevin Thomas

Prop 8 supporters still want judge disqualified

Lawyers file brief claiming Vaughn Walker’s ruling striking down gay marriage ban should be invalidated because he is gay and in a relationship with a man

Walker.Vaughn

JUDGING THE JUDGE | In this July 8, 2009 file photo, Judge Vaughn Walker is seen in his chambers at the Phillip Burton Federal Building in San Francisco, Calif. Lawyers for the sponsors of California’s voter-approved same-sex marriage ban have filed briefs with the appeals court asking that Walker’s ruling striking down Prop 8 be invalidated because he is gay. (San Francisco Chronicle, Paul Chinn/Associated Press)

LISA LEFF  |  Associated Press
editor@dallasvoice.com

SAN FRANCISCO — The sponsors of California’s voter-approved same-sex marriage ban have asked a federal court to invalidate the ruling of the federal judge who struck it down, saying the judge should be disqualified because he did not divulge he was in a long-term relationship with another man.

Lawyers for the Proposition 8’s backers filed their open brief on the issue late Monday, Oct. 3, with the 9th U.S. Circuit Court of Appeals in San Francisco. They claim that another federal judge erred when he concluded U.S. Chief Judge Vaughn Walker’s relationship status was irrelevant to Walker’s ability to fairly preside over the trial on the measure’s constitutionality.

In their brief, they argue that Walker’s impartiality can be questioned because he is “similarly situated” to the plaintiffs who sued to overturn Proposition 8, two same-sex couples in established relationships. They also said that while Walker has not indicated if he and his partner wish to marry, research presented as evidence in the trial found that two-thirds of unmarried same-sex couples would tie the knot if they could.

“Given that Judge Walker was in a long-term, same-sex relationship throughout this case (and
for many years before the case commenced), he was, in Plaintiffs’ own words, ‘similarly situated to (Plaintiffs) for purposes of marriage,’” the lawyers wrote. “And it is entirely possible — indeed, it is quite likely, according to Plaintiffs themselves — that Judge Walker had an interest in marrying his partner and therefore stood in precisely the same shoes as the Plaintiffs before him.”

Walker’s successor, Chief Judge James Ware, rejected similar arguments in late August, after the coalition of religious conservative groups that qualified Proposition 8 for the November 2008 ballot made the first attempt in the nation to disqualify a sitting judge based on sexual orientation.

Ware said the presumption that Walker could not be unbiased was “as warrantless as the presumption that a female judge is incapable of being impartial in a case in which women seek legal relief.”

In an apparent response, the coalition’s attorneys wrote that they were not suggesting that gay or lesbian judges could never preside over cases involving gay rights questions.

“We know of no reason to believe, for example, that Judge Walker would have any personal interest in the outcome of litigation over, say, the constitutionality of the military’s ‘don’t ask, don’t tell’ policy,” they said. “Nor would there be any issue with a gay or lesbian judge hearing this case so long as a reasonable person, knowing all of the relevant facts and circumstances, would not have reason to believe that the judge has a current personal interest in marrying.”

The 9th Circuit already is reviewing whether Walker properly concluded the ban violates the rights of gay Californians and if Proposition 8’s sponsors were eligible to appeal his ruling once the state’s attorney general and governor declined to challenge it. A decision could come down at any time.

This article appeared in the Dallas Voice print edition October 7, 2011.

—  Kevin Thomas

SF encourages gay men to use female condoms

Associated Press

SAN FRANCISCO — San Francisco health officials are stepping up the fight against spread of sexually transmitted diseases by urging the use of a more comfortable, redesigned female condom.

The city is the nation’s first to encourage use of the new FC2 condom by women and gay men.

The San Francisco Chronicle says health officials began pushing use of female condoms in the mid-1990s, but they were criticized as awkward, uncomfortable and expensive.

Last year, the manufacturer redesigned the safe-sex female condom using a thinner material. The two rings securing the condom are also made of a softer material.

The condoms will be available at city clinics without charge. Free condoms were distributed Monday at San Francisco’s Civic Center, San Francisco State University, Dolores Park, the Bayview and the Castro.

—  John Wright

A glimpse of the change to come: School officials yank trans teen’s homecoming king crown

The San Francisco Chronicle posted a story online today about Oakleigh Reed, a transgender 17-year-old at Mona Shores High School in Muskegon, Mich., who was voted homecoming king by his classmates after he launched a Facebook campaign for the crown. But then school officials yanked Oak’s crown, declaring that students can only choose a boy for homecoming kind, and Oak — as he is known to his friends — is not a boy.

Oak has been coming to terms with his gender identity for some time, and his classmates and teachers and family have apparently been coming to terms along with him. His teachers refer to Oak with male pronouns in class. The school allows him to wear a tuxedo when he marches with the band. And he has been given permission to wear the male cap and gown at graduation.

But because he is “still enrolled as a female” at the high school, Oak can’t be homecoming king, school officials declared.

Another homecoming king has already been crowned. But Oak’s classmates, angry that their votes were ignored, have taken to Facebook to protest with a page called “Oak is Our King.” And they are encouraging everyone to wear T-shirts bearing that slogan to school on Friday, Oct. 1. The Chronicle says that the ACLU is considering taking on the case.

Now, I figure there are two ways to look at this, and I guess when it comes right down to it, you can see it both ways at once. First of all — and this was my first reaction — is to be angry at school administrators who completely discounted the choice of the majority of the students who wanted to honor their friend Oak by naming him homecoming king. We could see it as just another example of the way LGBT people, especially LGBT youth, are mistreated by a bigoted society.

That’s all true, of course. But look again and you can see a very bright silver lining to this cloud: The fact that the students voted a transgender teen as homecoming king. If that’s not progress, what is?

There will come a day when the “old guard” — the ones that take away homecoming king crowns and refuse to letLGBT students take their same-gender dates to the prom and insist they dress according to outdated gender stereotypes — will be gone and this younger, more open-minded and accepting generation will be in charge. And maybe when that happens, the young people of that day will stand aghast at the idea that same-sex couples weren’t allowed to get married, that gays and lesbians couldn’t serve openly in the military, that transgenders were ridiculed just for trying to be themselves.

I’m not saying we should stop fighting for those things now and wait for the inevitable change. I  know I don’t have that much patience, and I am sure most of you don’t either.  But I do think we can take heart in knowing that change is coming. Whether the bigots like it or not.

—  admin

Prop 8 judge is gay

Chief U.S. District Judge Vaughn Walker
Chief U.S. District Judge Vaughn Walker

San Francisco Chronicle columnists Phillip Matier and Andrew Ross on Sunday “outed” Chief U.S. District Judge Vaughn Walker as a gay man. Walker, by the way, is the jurist who will, in the next few weeks, be issuing a ruling on whether California’s Proposition 8 banning same-sex marriage in that state violates the U.S. Constitution.

In their article, Matier and Ross said Walker’s orientation is “the biggest open secret” in the Prop 8 lawsuit, and that gay lawyers and politicians in San Francisco don’t think the judge’s personal orientation will have any effect on his ruling. (Hmmm. Big surprise there. Surely Matier and Ross didn’t expect the gays to say the fact that the judge is gay gives the plaintiffs in the case an advantage, did they?)

But if the plaintiffs — the folks challenging Prop 8 — win, you can be DAMN SURE the defendants are going to make a big deal out of the fact that Walker is gay. And what if the defendants will in Walker’s court? What will the gay folks say about a gay judge that ruled against them? Apparently, Walker already has some experience with that: As Matier and Ross point out, he had to fight the reputation of being anti-gay when he was trying to get to be a judge because back in the 1980s, he successfully represented the U.S. Olympic Committee in a lawsuit to keep the San Francisco Gay Games from using the name “Gay Olympics.”

The columnists also point out that the case was assigned to Walker; he didn’t “seek it out,” and that he was appointed to the bench by President George H.W. Bush, someone not seen as particularly gay-friendly.

So, what do you think? Is it an advantage for gay marriage supporters that the judge hearing the case is gay? Or is it a hidden pitfall that will work against the gay marriage cause in the long run?

—  admin