Calif. court mulls appeal rights of Prop 8 backers

LISA LEFF | Associated Press

SAN FRANCISCO — California’s same-sex marriage ban endured its latest legal test Tuesday as the state’s high court grilled attorneys on whether Proposition 8′s backers have legal authority to appeal a federal ruling that overturned the voter-approved measure.

The tenor of the justices’ questioning during the more than hour-long hearing often leaned in favor of arguments by backers of the ban, who argue that the state Constitution gives ballot initiative proponents legal authority to defend their measures in court.

On that critical question, several justices noted that the California Supreme Court always has, as a matter of practice if not written policy, allowed the sponsors of ballot questions to appear before it when their measures were challenged.

“Never in any recorded (case) have proponents been denied the right to advance their interests,” Associate Justice Kathryn Werdegar noted during the closely watched arguments. “The present state of California law is we allow liberal intervention.”

The Supreme Court is examining the scope of the power afforded the official backers of ballot initiatives at the request of a federal appeals court that is reviewing a federal judge’s year-old ruling that Proposition 8 violates the constitutional rights of same-sex couples.

The 9th U.S. Circuit Court of Appeals has expressed doubts about the ability of Proposition 8′s sponsors to challenge the lower court ruling absent the involvement of California’s governor or attorney general, both of whom agreed the ban was unconstitutional and refused to appeal.

But the 9th Circuit punted the question to the California Supreme Court earlier this year, saying it was a matter of state law. Although the appeals court still must decide for itself if Proposition 8′s supporters are eligible under federal court rules to appeal the ruling that struck down the ban, the state court’s input is likely to weigh heavily in its decision.

If the state Supreme Court says the ban’s proponents did not have standing to appeal, and if the 9th Circuit and ultimately the U.S. Supreme Court ultimately agree, it could clear the way for same-sex marriages to resume in California.

If the court holds the proponents were qualified to appeal and the 9th Circuit agrees, the appeals court would then weigh the broader civil rights implications of Proposition 8. A decision on the ban’s constitutionality is expected to be appealed to the U.S. Supreme Court.

While agreeing that the state Supreme Court has never refused to give initiative proponents a seat at the defense table, several justices quizzed Charles Cooper, an attorney for the coalition of religious and conservative groups that sponsored Proposition 8, on whether there was a difference between the court using its discretion to do so and issuing an opinion that would be binding on future courts.

Chief Justice Tani Cantil-Sakauye observed that in the vast majority of cases in which initiative backers have been allowed to defend their measures, they have been “standing shoulder-to-shoulder” with the attorney general’s office, not acting on their own.

Cooper agreed that he was seeking to remove some of the court’s discretion, but said the justices could draft their guidance so it would only apply to situations, such as with Proposition 8, where state officials have refused to defend laws already approved by voters.

Theodore Olson, the attorney representing the two same-sex couples who successfully sued in federal court to strike down Proposition 8, argued that permitting initiative sponsors to step in under such circumstances would infringe on the authority of elected state officials.

“There is nothing in the California Constitution or the statutes that give private citizens the right to take on the attorney general’s constitutional responsibility to represent the state in litigation in which the state or its officers are a party,” Olson said.

“Is there any authority for the attorney general and the governor to second-guess a majority of the population?” Associate Justice Ming Chin interrupted.

Olson answered yes, explaining that the attorney general is obligated not to defend laws he or she judges to be unconstitutional.

Associate Justice Goodwin Liu, who was sworn in on Thursday and serving his first day on the court Tuesday, picked up the line of questioning.

“It seems to me the 9th Circuit has set up a hoop the initiative proponents must jump through to get to appeal,” Liu said. “Given the fact that initiative proponents clearly would have standing to appeal if this litigation was in state court … why can’t we read (the U.S. Constitution) to give the initiative proponents what they need to jump through that hoop?”

Associate Justice Joyce Kennard, who along with Werdegar was in the 4-3 Supreme Court majority that briefly cleared the way for same-sex marriages in California before voters passed Proposition 8, also questioned how the court could deny initiative sponsors the right to appeal in cases where state officials have refused to defend a law.

“It would appear to me that to agree with you would nullify the great power the people have reserved for themselves pertaining to proposing and adopting state Constitutional amendments,” she said.

Werdegar suggested that the court could tell the appeals court that it ordinarily grants initiative proponents the right to defend their measures, but stop short of establishing a new legal precedent.

The court has 90 days in which to issue its opinion.

—  John Wright

‘This issue is so ’80s’: Thousands rally in support of same-sex marriage ban in N.C.

From WRAL (Watch video of the entire rally below)

GARY D. ROBERTSON  |  Associated Press

RALEIGH, N.C. — The chatter over a proposed constitutional amendment to ban gay marriage in the state constitution rose Tuesday as thousands of conservative Christians rallied to urge the Legislature to vote on it now that its Republican leaders are open to the idea after Democrats blocked it for years.

State Capitol Police estimated about 3,500 people participated in the marriage amendment rally behind the Legislative Building and organized by the Forsyth County-based Return America group. Visitors carried placards, American and Christian flags and listened to local ministers and nationally known speakers in conservative Christian circles argue voters are restless to cast yes or no votes for the amendment.

North Carolina is the only Southeastern state that hasn’t approved an amendment restricting marriage to one man and one woman. Thirty states have voted to allow that restriction in their state constitutions.

“It’s time. It’s time, North Carolina, it’s time,” Tony Perkins, president of the Family Research Council, told a cheering crowd on the Halifax Mall. “It’s time to protect from those in Washington and those activist judges who are willing to aid those who want to redefine and ultimate destroy marriage.”

Earlier Tuesday, several ministers and a rabbi explained their opposition to the amendment in a separate news conference. They said passing the amendment would make gays, lesbians, bisexual and transgendered people second-class citizens by siding with the religious views of what they call a minority of citizens and deny them the ability to love whom they choose.

“This extreme legislation will only cause needless pain and suffering,” said the Rev. T. Anthony Spearman of Clinton Tabernacle AME Zion Church in Hickory. “At a time when legislators should be chopping away at unemployment rates and searching for ways to build a budget that would befriend the poor and marginalized, legislators are choosing to advance this divisive social agenda.”

North Carolina state law already identifies a valid marriage as one “created by the consent of a male and female person.” However, supporters of the ban contend an amendment would better protect traditional marriage from court challenges by same-sex couples married legally in five states and the District of Columbia.

About a dozen lawmakers were introduced at the rally, including two key House Republicans who said the question would be heard in the Legislature in 2011.

“It will get done this year,” House Majority Leader Paul Stam, R-Wake, told the crowd.

Senate leader Phil Berger, R-Rockingham, said later he also expected the amendment to be considered soon, either in the current session or in an extra session later that would examine proposed constitutional amendments.

Return America’s recent biennial rallies had fallen on the deaf ears of Democrats who led the General Assembly in one or both chambers for more than a century. They wouldn’t consider Republican-penned amendments and were allied with gay rights groups that argue an amendment would emboss discrimination permanently into state law.

That changed when the GOP won both chambers in the Legislature last fall. Three-fifths of the members in the House and Senate would have to approve the amendment in order for it to be on the November 2012 ballot, the date for a pair of bills that have been introduced. Some Democrats would be needed in the House to meet the three-fifths threshold. Some have co-sponsored previous measures.

A simple majority would be required in the statewide referendum.

The Senate version of the constitutional amendment also could deny same-sex partners other benefits such as visitation rights in hospitals and health insurance, according to Ian Palmquist of the gay rights group Equality North Carolina.

Amendment opponents could be helped by changing attitudes about homosexuality. Supporters point to surveys showing more than 70 percent like the amendment, but a 2009 Elon University Poll showed about half of North Carolina adults oppose one. And a February Elon poll showed more than half of North Carolina residents now support some form of legal recognition of same-sex couples.

The rally came three days after thousands of people attended the first “OutRaleigh” festival, which celebrated the area’s gay and lesbian community. Another North Carolina-based group called Faith in America is paying for billboards and newspaper ads in Raleigh calling on an end to religious bigotry, and ultimately a gay marriage amendment.

“This issue is so ’80s,” said Rep. Marcus Brandon, D-Guilford, the second openly gay lawmaker elected in North Carolina history. “It’s really an extreme, extreme position.” Brandon said he’s a Christian and believes some churches can confuse the values of the Christian faith and Jesus.

“Jesus was a compassionate person, and he would not have a rally outside right now,” he said.

But rally participants who traveled to Raleigh from across the state said they believed they had the right answer to the well-known Christian motto and question, “What would Jesus do?”

“I think he would want us to stand up for what’s right,” said Cindy Sartain, 54, of Concord, who came to the rally with members of her Baptist church in Kannapolis.

Rich Wells, 44, of Garner, an engineer who took a vacation day to attend the rally, said he’s encouraged by the Legislature’s interest in the bill, but “ultimately we just pray and leave the results to God.”

—  John Wright

Gay marriage ban keeps moving toward Minn. ballot

MARTIGA LOHN | Associated Press

ST. PAUL, Minn. — A proposed constitutional amendment to ban gay marriage moved closer to getting on Minnesota’s 2012 ballot Monday, clearing a Republican-led House panel after its first Senate committee approval last week.

If both chambers approve the proposal, voters would be asked next year whether to amend the state constitution to define marriage solely as union of one man and one woman.

The amendment’s prospects have improved this year after last year’s elections gave Republicans full control of the Legislature for the first time in nearly four decades. Democratic Gov. Mark Dayton opposes the amendment but doesn’t have the power to block it.

The 10-7 party-line vote by the House Civil Law Committee seemed almost preordained, with the panel’s Republicans voting yes and Democrats no. Minnesota law already prohibits gay marriage and prevents the state from recognizing same-sex marriages performed in other states and countries. But Rep. Steve Gottwalt, the bill’s sponsor, said he wants voters to be the ones to define marriage in Minnesota, not lawmakers or judges.

“It is not about hate, it is not about discrimination, it is about defining in Minnesota’s constitution the definition of marriage,” said Gottwalt, R-St. Cloud.

The amendment’s opponents predicted it would unleash a divisive political campaign that could tear apart families and communities.

“How many more gay people does God have to create before we ask ourselves whether God actually wants them around?” said Rep. Steve Simon, DFL-St. Louis Park, drawing applause and shushing from panel chairman Torrey Westrom, R-Elbow Lake.

Religious leaders of various backgrounds testified on both sides of the issue about the importance of families.

Pastor Sergio Choy of Bloomington’s Ministerio Maranatha Church spoke in favor of traditional marriage, adding that redefining the institution to include same-sex unions would be comparable to trying to make water out of hydrogen or oxygen alone.

“It is one mother and one father, one man and one woman who make up the foundation of the family,” Choy told lawmakers.

Gay-rights supporters warned legislators they risked overstepping their role and going against the tide of history as acceptance of gay relationships increases.

“This is not the religious law committee — this is the civil law committee,” said David Cummer, an elder at Grace Trinity Community Church in Minneapolis. “You guys have not been elected to the College of Cardinals. You are not members of the state church of Minnesota.”

The bill now heads to the Ways and Means Committee, its last stop before reaching the full House. The Senate version will go before a rules panel before reaching the floor.

—  John Wright

Marriage equality battles ramping up across U.S.

N.H. Republicans working to repeal marriage law; other states offer mixed bag in legislative actions

DANA RUDOLPH | Keen News Service
lisakeen@mac.com

Two New Hampshire legislators have recently introduced bills to repeal that state’s marriage equality law, even though Republican leaders said Jan. 13 that such a repeal is not a party priority in 2011.

And several other states saw legislative moves toward or away from equality in recent weeks.

New Hampshire: State Rep. David Bates, R-Windham, and 11 cosponsors filed a bill that would repeal marriage equality and prevent New Hampshire from recognizing the marriages of same-sex couples contracted outside the state. New Hampshire same-sex couples that married in the state before the bill became effective would continue to be recognized as married.

Same-sex couples that married in another state would no longer be recognized.

State Rep. Leo Pepino, R-Manchester, and five cosponsors filed a separate bill that would repeal marriage equality and prohibit civil unions or any other form of legal recognition for same-sex couples. The Associated Press reported Jan. 25, however, that Pepino will ask the committee hearing the bill “to retain it until next year when they have more time.”

Democratic Gov. John Lynch, who signed the original marriage equality bill into law, has said he would veto a repeal bill. But Republicans hold a veto-proof majority in both houses.

Mo Baxley, executive director of New Hampshire Freedom to Marry, said in an interview that she thinks marriage equality supporters can sustain the governor’s veto by finding supporters among older, more libertarian-leaning Republicans.

“The public is solidly on our side,” Baxley asserted, but he cautioned, “We can’t just presume that we’ve got the votes . . . .We’ve got to be full throttle out there.”

She said state Republicans also plan to introduce a bill next year for a ballot measure that would amend the state constitution to prohibit same-sex marriage. With a spotlight on New Hampshire’s first-in-the-nation presidential primary, she said, a ballot fight in 2012 could help motivate a stronger conservative turnout.

Maryland: Marriage equality bills were introduced into both the Senate and House in the past week. Democrats have a majority in both chambers. Gov. Martin O’Malley, also a Democrat, has said he would sign the bill if it reaches his desk. Cosponsor Sen. Jamie Raskin, D-Montgomery, said in a press briefing Jan.y 21 that he expects a fight on the Senate floor and will need 29 votes out of 47 to break a filibuster. An up-or-down vote on the bill, after the filibuster is broken, will require 24 votes. Democrats have a 35 to 12 majority in the Senate. A public hearing on the Senate bill is scheduled for Feb. 8.

Hawaii: The full Senate on Jan. 28 passed a bill to legalize civil unions for same- and opposite-sex couples. It now heads to the House, where it is expected to pass. Gov. Neil Abercrombie, a Democrat, has said he will sign it.

Illinois: Gov. Pat Quinn, a Democrat, signed a civil union bill Jan. 31 giving same- and opposite-sex couples many of the same rights as married ones.

Iowa: The House Judiciary Committee passed a bill Jan. 24 that would allow voters to decide on a state constitutional amendment banning same-sex couples from marriage, civil unions, or domestic partnerships. In the Senate, however, Sen. Kent Sorenson, R-Indianola, attempted to bypass Senate rules and bring to the floor a vote on the Senate version of the bill. Democrats, who hold a 26-24 majority, voted down the attempt.

New Mexico: Three bills were introduced in the House and one in the Senate that would variously put before voters a constitutional amendment banning same-sex marriage and ban New Mexico from recognizing such marriages enacted outside the state.

Wyoming: The House passed a measure Jan.y 25 to prevent the state from recognizing same-sex marriages contracted elsewhere. The next day, the state Senate passed a bill that would allow voters to decide whether to amend the state constitution to ban same-sex marriage. A civil union bill introduced by openly gay State Rep. Cathy Connolly, D-Laramie, failed by one vote to make it out of committee Jan. 28.

© 2011 by Keen News Service. All rights reserved.

This article appeared in the Dallas Voice print edition Feb. 4, 2011.

—  John Wright

Wyo. lawmakers say gay divorce case highlights need to define marriage

BEN NEARY  |  Associated Press

CHEYENNE, Wyo. — Some top Wyoming lawmakers said Friday, Jan. 14 that a same-sex divorce case pending in the state Supreme Court underscores the need to clarify what constitutes legal marriage in the state.

District Judge Keith Kautz of Niobrara County in November dismissed a case in which two women who were married in Canada in 2008 were seeking a divorce in Wyoming. Kautz said state law didn’t give him jurisdiction over ending the marriage. One of the women appealed.

Senate President Jim Anderson, R-Glenrock, and House Speaker Ed Buchanan, R-Torrington, both said in interviews Friday that the Niobrara County case shows that the Legislature needs to clarify state law. Attempts to reach lawyers representing the divorcing couple were unsuccessful.

One provision of Wyoming law says marriage can exist only between one man and one woman. But another provision says the state will recognize valid marriages performed elsewhere.

Currently, performing a same-sex marriage is legal in only a handful of states, mostly in the Northeast.

A proposal pending in the Wyoming Senate would let voters decide whether to amend the state constitution to specify that the state would recognize only marriages between a man and a woman. The Senate on Friday sent the measure, Senate Joint Resolution 5, to the Judiciary Committee.

Rep. Cathy Connolly, D-Laramie, a lesbian, has pushed for increased rights for gays and lesbians in the state. She introduced a competing bill Friday, House Bill 143, that would recognize same-sex marriages.

Another House bill would ban same-sex marriages and specify that Wyoming courts wouldn’t have jurisdiction over same-sex marriages.

The House last year voted down a bill that would have allowed voters to decide whether to amend the state constitution to deny recognition of same-sex marriages.

“So often, what we hear from the media and others is that this is a waste of time, and this is not necessary,” Anderson said of addressing the same-sex marriage issue. “I think it deserves a certain amount of time because I think the people of Wyoming want this issue debated. And for the most part, I think the people of Wyoming want an opportunity to vote on that issue.”

Buchanan said the existing state statutes are in conflict.

“Too bad this wasn’t done a year ago,” Buchanan said, adding that would have given the Supreme Court clear direction on how to handle the divorce case.

Buchanan said he believes some state lawmakers want to forbid same-sex marriages in Wyoming because they disagree with the practice.

“I think folks want to protect the traditional notion of what marriage is, and that is a relationship between a man and a woman,” Buchanan said. “But also, they just want this issue to be decided one way or another. So I think it’s just kind of twofold.”

Sen. Curt Meier, R-La Grange, is the main sponsor of the joint resolution that would put the question of whether to deny recognition of same-sex marriages performed elsewhere before Wyoming voters. He said Friday that the pending same-sex divorce case isn’t driving his bill.

“I’m doing this because over the last several years there have been several polls, and the voters of the state of Wyoming have expressed a sincere interest that that’s an issue that they want to vote on, and this will give them an opportunity to do that,” Meier said.

—  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

Oklahoma outlaws the Ten Commandments

These are now illegal in Oklahoma

On Nov. 2, Oklahomans voted on a proposition that made Sharia law illegal in the state.

The proposition reads:

This measure amends the State Constitution. It changes a section that deals with the courts of this state. It would amend Article 7, Section 1. It makes courts rely on federal and state law when deciding cases. It forbids courts from considering or using international law. It forbids courts from considering or using Sharia Law.

International law is also known as the law of nations. It deals with the conduct of international organizations and independent nations, such as countries, states and tribes. It deals with their relationship with each other. It also deals with some of their relationships with persons.

The law of nations is formed by the general assent of civilized nations. Sources of international law also include international agreements, as well as treaties.

Sharia Law is Islamic law. It is based on two principal sources, the Koran and the teaching of Mohammed.

What most Oklahomans undoubtedly fail to realize is that the Ten Commandments are part of Sharia law, so their 70 percent vote to outlaw Sharia also outlawed the Ten Commandments.

A number of groups have already filed challenges based on the First Amendment prohibition on any law “respecting an establishment of religion” or impeding the free exercise of religion.

Former House Speaker Newt Gingrich said he would like a similar federal law.

The goal, according to the measure’s Republican sponsor, Rex Duncan, was a pre-emptive strike to stop liberal judges from undermining the principles upon which America is based.

Maybe Duncan thinks judges are ruling in favor of same-sex marriage and ending discrimination because that’s what Sharia law requires?

Actually, that would be Israeli law that recognizes same-sex marriage, offers partner benefits and allows — no, insists — that its LGBT citizens serve in the military. So maybe they need to be taking the Judeo out of their Judeo-Christian teachings and reconsider the Sharia thing. Under Sharia law, Uganda is again talking about passing its “kill the gays” bill. And it seems this would fit nicely into Oklahoma politics.

And while killing those pesky Ten Commandments was probably not the goal of 70 percent of the state’s voters, it doesn’t matter what the intent was, it matters what the law says. While murder is covered by other state laws, there is no word on whether belief in one God (No. 2), remembering the Sabbath (No. 5) and keeping it holy, or honoring your parents (No. 6) will be punished, or if sale of cameras will be discontinued (graven images, No. 3).

—  David Taffet

Court won’t force Calif. officials to defend Prop 8

Associated Press

SACRAMENTO, Calif. — A California court has refused to order Gov. Arnold Schwarzenegger and Attorney General Jerry Brown to appeal a ruling that overturned the state’s gay marriage ban.

The 3rd District Court of Appeal on Wednesday, Sept. 1 denied a conservative legal group’s request to force the officials to defend voter-approved Proposition 8.

Presiding Justice Arthur Scotland did not explain why the appeals court turned down the request filed two days earlier by the Pacific Justice Institute.

The institute now plans to take the matter to the California Supreme Court, Chief Counsel Kevin Snider said Thursday.

“We are disappointed that the appellate court showed indecisiveness in trying to prevent a constitutional crisis,” Snider said. “They didn’t want to deal with it.”

The institute maintains the attorney general and governor have the duty to uphold all laws, including those passed by voters.

Brown has said he cannot defend Proposition 8 because he thinks it is unconstitutional; Schwarzenegger has chosen to remain neutral.

Chief U.S. District Judge Vaughn Walker struck down Proposition 8 last month as a violation of gay Californians’ civil rights.

The measure approved by 52 percent of California voters in November 2008 amended the state Constitution to outlaw same-sex unions five months after the state Supreme Court legalized them.

The state has until Sept. 11 to challenge Walker’s ruling. Both Brown and Schwarzenegger have said they don’t plan an appeal.

The coalition of conservative and religious groups that sponsored the ban has appealed the ruling by Walker. But doubts have been raised about whether its members have authority to do so because as ordinary citizens they are not responsible for enforcing marriage laws.

Twenty-seven members of the California Assembly sent Schwarzenegger a letter this week urging the governor to bring an appeal if Brown will not.

—  John Wright

White vs. Perry: Comparing the candidates on LGBT issues

Incumbent Republican faces former Democratic Houston mayor in race for Texas governor’s office

DAVID TAFFET  |  Staff Writer taffet@dallasvoice.com

Bill White, Rick Perry
IN THIS CORNER … | Democrats say LGBT voters should back former Houston Mayor Bill White, left, who has said he supports same-sex civil unions and opposed Texas’ anti-gay-marriage constitutional amendment. Republicans say that LGBT people who care about the economy should vote for incumbent Gov. Rick Perry, even though he pushed for passage of the marriage amendment.

Labor Day is the traditional kick-off of election season. This weekend, campaigning goes into high gear as voters begin paying more attention to the candidates competing in the November races.

The governor’s race pitting incumbent Rick Perry against former Houston Mayor Bill White is the Texas’ most high profile contest and an important one for the state’s LGBT community.

Perry came into office in January 2001 when George W. Bush resigned to become president. He has been elected twice since then and is seeking his third full term. He already is the longest-serving governor in Texas history and is currently the longest serving governor in the United States.

In May 2001, Perry signed the James L. Byrd Hate Crimes bill into law after years of opposition to the law by Gov. Bush. Since then, Perry’s record of LGBT issues has swung to opposite direction.

Under his tenure and with his support, an anti-same-sex-marriage amendment was added to the state constitution in 2005. But bills restricting adoption by gays and lesbians have not passed and Perry generally stayed out of that legislative debate.

White supports anti-bullying legislation that will be the top priority for Equality Texas in the upcoming legislature. That measure, first introduced in the legislature by Rep. Harryette Ehrhardt in the 1990s, has not come to the floor for a vote in past sessions.

Dallas County Republican Party Chairman Jonathan Neerman said that education is at the top of Perry’s priorities. He said that a good public education system is important to everyone, including the LGBT community, because it benefits the entire state.

Dallas County Democratic Party Chair Darlene Ewing agrees and points out how low Texas’ public education system ranks nationally. She said Texas has the highest dropout rate in the country.

“If they can’t have vouchers for their private schools, they’ll just destroy the public school system,” she said. “[Perry] sees it as a property tax burden.”

She said she believes White would be good for Texas and good for the LGBT community.

“I think he could do a lot,” said Ewing. “He believes in equality for everyone. Republicans use gay equality as a wedge issue.”

Ewing said that she believes that as governor, White would disregard sexual orientation in appointments, for example.

“I’ve heard him say that every citizen is entitled to protection,” she said. “He has a track record of working with all people in Houston.”

This week, the Texas Tribune reported Perry scored points by deriding the LGBT community.

“There is still a land of opportunity, friends — it’s called Texas,” Perry said. “We’re creating more jobs than any other state in the nation. … Would you rather live in a state like this, or in a state where a man can marry a man?”

He didn’t explain what one thing had to do with the other or address studies that show that same-sex marriage actually creates jobs.

Ewing dismissed the statement as nothing more than a “Let’s get the crazies all riled up” attempt.

But in this race, Dallas Log Cabin Republicans President Rob Schlein is focusing on Texas’ pro-business climate, with low taxes that have kept the state strong.

“I think the proof is in the economy,” said Schlein. “We have the best economy in the country and I think it has to do with conservative governance.”

Neerman said the election would hinge on the economy. He said LGBT voters would look for the same thing as straight voters.

“Who is the best man to lead the state in job creation, getting the economy moving and keeping spending under control,” he said. “This election will be about pocketbook issues.”

He pointed out that Perry angered many people in his base by not supporting an Arizona-type immigration law. Soon after that bill was signed into law, Perry said that a similar law wouldn’t work in Texas.

“He’s an ambassador for the state and he does a great job at that,” Neerman said.

Jonathan Neerman and Jennifer Allen
Jonathan Neerman and Jennifer Allen

But while White has attended Stonewall Democrats events across the state, Perry has not courted support of that group’s Republican counterparts.

“I’d like to see [Perry] do what another Republican governor did in Utah and host a reception for Log Cabin,” Dallas Log Cabin Republicans President Rob Schlein said. “Include us in the conversation.”

Bill White has said he supports civil unions rather than marriage. In 2005, he opposed the marriage ban proposition that became law. On his website, he has no official statements about equality for the LGBT community.

Under issues, the Perry campaign simply lists “Protecting Traditional Marriage,” without explanation, under a heading “social conservative.” The 2005 marriage ban remains in place. That is the only reference to anything gay.

The Texas Republican platform, however, goes into more detail. It calls for outlawing child custody by gay parents and only allowing supervised visitation if called for by court order.

The platform advocates outlawing adoption by gays and lesbians, disqualifying gays and lesbians from military service and excluding gays and lesbians and persons with infectious disease from the Americans with Disabilities Act.

Since being gay or lesbian isn’t a disability, this implies that any gay or lesbian person who is disabled would be disqualified from the law. Infectious disease refers directly to persons with HIV who are covered by the act.

Stonewall Democrats of Dallas President Erin Moore called the Republican Party platform reprehensible.

“As head of the Texas Republican Party, Perry had to have signed off on it,” she said. “Bill White has been a friend of the LGBT community as mayor of Houston and will be as governor.”

Schlein said, “As a practical matter, politicians do not govern by the platform.”

He noted that at their recent meeting, Texas Young Republicans unanimously called for removing the anti-gay planks from the platform.

Neerman agreed and thought this was the direction many social conservatives were moving. He cited Ted Olsen, who fought California’s Proposition 8 in court recently and won, as an example.

Dallas Stonewall Young Democrats Political Director Jennifer Allen gave a different example of why she is supporting White. She said she was impressed by White’s response after Hurricane Katrina.

“When the national government wasn’t doing anything about it, Bill White as mayor of Houston organized the city to provide housing, food and medical care when people were fleeing New Orleans,” she said.

Neerman and Schlein argue that Texas has not been affected by the recession as badly as other parts of the country and both credit Perry for that. They think Perry deserves LGBT support because economic issues are what this community is focused on.

Ewing argued that White would be great for Texas business and warned about four more years of Perry.

“Perry’s full of crap,” she said.

“He claims to have balanced the budget, but he took money from the feds to plug up the hole. When he panders to the secession nuts and then wants to sell the roads off to foreign companies, follow the money.”

A current Rasmussen poll has Perry at 49 percent and White at 41 percent.

This article appeared in the Dallas Voice print edition September 3, 2010.

—  Michael Stephens

Appeals court grants stay of Prop 8 ruling

LISA KEEN  |  Keen News Service

A three-judge panel of the 9th Circuit U.S. Court of Appeals issued an order Monday granting Yes on 8’s request for a stay of Judge Vaughn Walker’s ruling that Proposition 8 is unconstitutional. The appeals court panel also ordered, without being asked, that Yes on 8’s appeal of Walker’s ruling in Perry v. Schwarzenegger be addressed by the court on an expedited basis.

The panel said it would hear arguments on appeal during the week of Dec. 6, as well as arguments concerning whether Yes on 8 has legal standing to press the appeal.

The two-page order is a disappointment to many same-sex couples in California who were hoping that they would be able to obtain marriage licenses as soon as Judge Walker’s stay expired — at 5 p.m. Pacific time on Wednesday.

“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,” said Ted Olson, one of the lead attorneys for plaintiffs challenging Proposition 8.

Olson, one of the most prominent conservative attorneys in the country, launched the high-profile challenge of California’s voter-approved constitutional ban on same-sex marriage with liberal attorney icon David Boies. Walker, chief judge of the U.S. District Court for Northern California (San Francisco), heard three weeks of testimony by the plaintiffs and Proposition 8 supporters in January.

In a dramatic 136-page ruling on Aug. 4, Walker declared the same-sex marriage ban in the state constitution violates the U.S. Constitution’s guarantees of equal protection and due process. Walker agreed to stay — or delay enforcement — of his decision until Aug. 18, giving the 9th Circuit time to decide whether to grant a more extended appeal.

Evan Wolfson, who was a lead attorney on the first same-sex marriage case — in Hawaii in 1996 — called the 9th Circuit panel’s decision to continue Walker’s stay “disappointing.”

“But there are many twists in the road to justice,” said Wolfson, “and we are encouraged by the court’s setting a fast pace for the appeal, revealing that the judges understand how important a quick end to the exclusion from marriage is to gay couples, their loved ones, and all Americans who believe in equality under the law.”

The 9th Circuit panel includes two Clinton appointees — Judges Sidney Thomas and Michael Hawkins — and one Reagan appointee, Edward Leavey.

The panel set Sept. 17 as the date Yes on 8’s initial argument brief is due.

The response brief from the Ted Olson-David Boies legal team challenging Proposition 8 is due Oct. 18. And Yes on 8 may reply to plaintiffs’ brief by Nov. 1.

Monday’s order means the same-sex marriage ban will stay intact at least until December, when the 9th Circuit will hear arguments on both the issue of Yes on 8’s standing to appeal and, perhaps, on the merits of Walker’s decision.

Meanwhile, on the East Coast, where U.S. District Court Judge Joseph Tauro ruled — in two separate cases — July 9 that the ban on federal benefits to same-sex couples is unconstitutional, the clock is still ticking down the 60 days the U.S. Department of Justice has to appeal the decisions to the 1st Circuit U.S. Court of Appeals.

© 2010 by Keen News Service. All rights reserved.

—  John Wright