Oetken sidesteps questions on brief in sodomy case

Paul Oetken

Gay court nominee says arguments in brief he wrote for Lawrence v. Texas expressed his client’s views, not necessarily his

LISA KEEN  |  Keen News Service
lisakeen@mac.com

When openly gay federal district court nominee Paul Oetken went before the U.S. Senate Judiciary Committee in March, Sen. Charles Grassley was the only Republican who showed up.

 

He introduced Oetken, who was born in his home state of Iowa, but had no questions.

But not all questioning takes place in front of cameras. Some takes place on paper, and that’s where Grassley grilled Oetken over his positions on gay-related issues, and Oetken responded in a way that might make some LGBT activists cringe.

“Do you personally believe that government classifications based on sexual orientation deserve a heightened level of scrutiny?” asked Grassley, in one of 17 questions to Oetken.
Grassley’s question concerned a brief Oetken wrote for the National Gay and Lesbian Bar Association and submitted to the U.S. Supreme Court in support of overturning laws prohibiting same-sex sexual relations.

The case was Lawrence v. Texas and, in 2003, a majority of the Supreme Court did overturn such laws. Oetken’s brief argued that the courts should use the strictest form of scrutiny when examining laws that treat gay people differently.

In responding to Grassley, Oetken put some distance between himself and the brief, saying, “I have not expressed a personal view on this subject. The arguments in the amicus brief that I co-authored in Lawrence v. Texas were arguments made on behalf of clients.”

“Although I believed that there was a good faith basis in Supreme Court precedent for making those arguments [in the brief], they do not necessarily reflect how I would approach these issues as a district judge,” wrote Oetken.

Oetken also put some distance between his brief and the Supreme Court’s decision, noting that, “The Supreme Court in Lawrence v. Texas did not decide that case under the Equal Protection Clause, but rather under the Due Process Clause, and it therefore did not decide the issues addressed in my amicus brief in that case.”

Oetken also said, “If confirmed as a district judge, I would apply the applicable precedents of the Supreme Court and the Second Circuit.”

Republican Sen. Jeff Sessions also submitted written questions about Oetken’s brief in Lawrence. Sessions noted that Oetken had argued that the issue of physician-assisted suicide should be decided by each state legislature.

He quoted Oetken saying, the issue of physician-assisted suicide “should stay where it belongs, in the legislatures” because the states’ “varied approaches to the issue may, over time, aid in forming a national consensus, making it possible for Congress to resolve it through national legislation.”

But Sessions was interested in how Oetken could argue, in 2002, to leave the suicide issue to the states and then argue, in 2003, “that Texas’ anti-sodomy law was something that warranted federal intervention. …”

Oetken, again, noted that the Lawrence brief included “arguments made on behalf of clients.”

His argument to leave the suicide issue to the states, he said, was appropriate given that there was no federal legislation addressing it.

Oetken’s nomination was reported out of committee on April 7 and is awaiting a vote by the full Senate.

© 2011 Keen News Service. All rights reserved.

—  John Wright

Judges that will hear Prop 8 case called ‘a very good panel’ for gay marriage supporters

Backers of anti-gay California initiative say development means case even more likely to be decided by Supreme Court

LISA LEFF | Associated Press

SAN FRANCISCO — Two judges appointed by Democratic presidents and one named by a Republican will decide if a San Francisco trial judge improperly struck down California’s same-sex marriage ban, a federal appeals court announced Monday, Nov. 29.

Judges Michael Hawkins, Stephen Reinhardt and N. Randy Smith of the 9th U.S. Circuit Court of Appeals were randomly assigned the landmark case from the court’s pool of 27 active judges.

The panel is scheduled to hear arguments next week over the constitutionality of the voter-approved ban, known as Proposition 8.

Reinhardt, a 79-year-old Los Angeles resident, was appointed by President Jimmy Carter in 1980 and is regarded as one of the 9th Circuit’s most liberal jurists. Hawkins, a 65-year-old Arizonan, was appointed by President Bill Clinton in 1994.

Smith, 61, was appointed by President George W. Bush in 2007 and keeps his chambers in his native Idaho.

Proposition 8′s sponsors are appealing Chief U.S. District Judge Vaughn Walker’s August ruling that overturned the 2008 law as a violation of gay and lesbian Californians’ civil rights. They argue that Walker ignored a U.S. Supreme Court precedent from 1973 that held the U.S. Constitution does not recognize marriage rights for gays.

Observers predicted the panel’s makeup makes it less likely Walker would be reversed.

“Anyone who follows the 9th Circuit closely would say that this a very good panel for the Prop 8 opponents and a very bad panel for its defenders,” said Arthur Hellman, a University of Pittsburgh School of Law professor who is an expert on the court. “I expect a 2-1 decision, with Reinhardt and Hawkins outvoting Smith.”

Proposition 8′s supporters had the same interpretation, and reiterated their plan to take the case to the U.S. Supreme Court, if necessary.

“Judge Reinhardt’s inclusion on the 9th Circuit panel adds more weight to what the Prop 8 Legal Defense team has said since this case was filed in federal court: We fully expect that it will ultimately be decided by the highest court in the land,” the California Family Council, which was part of the coalition of religious and conservative groups that backed the 2008 measure, said in a statement.

When they meet in San Francisco on Dec. 6, one of the issues the judges will consider is whether the ban’s backers had the authority to bring the appeal after Gov. Arnold Schwarzenegger and Attorney General Jerry Brown decided not to challenge the lower court ruling.

Officials from conservative Imperial County have asked the 9th Circuit to allow them to represent the state’s interests if the panel decides that Proposition 8′s sponsors lack standing.

—  John Wright

Prop 8 backers slam trial judge in urging appeal

Marriage ban sponsors call Vaughn Walker’s consideration of evidence ‘egregiously selective and one-sided,’ accuse him of ‘willful’ disregard

LISA LEFF  |  Associated Press

SAN FRANCISCO — Backers of California’s same-sex marriage ban urged a federal appeals court to overturn the trial judge who struck down Proposition 8 by arguing late Friday, Sept. 17 that his consideration of evidence was “egregiously selective and one-sided.”

In written arguments to the 9th U.S. Circuit Court of Appeals, lawyers for the ban’s sponsors alleged that Chief U.S. Judge Vaughn Walker “quite willfully” disregarded a 1972 U.S. Supreme Court precedent and other relevant information when he decided the voter-approved measure was an unconstitutional violation of gay Californians’ civil rights.

“The district court based its findings almost exclusively on an uncritical acceptance of the evidence submitted by Plaintiffs’ experts, and simply ignored virtually everything — judicial authority, the works of eminent scholars past and present in all relevant academic fields, extensive historical and documentary evidence — that ran counter to its conclusions,” they wrote in their 134-page opening brief.

Lawyers for the two couples who successfully sued in Walker’s court are due to file their responses next month. A three-judge 9th Circuit panel has scheduled oral arguments in the case for the first week in December and put Walker’s order requiring the state to issue marriage licenses to same-sex couples on hold until it renders its own decision.

The court papers filed Friday contained unbridled criticism of Walker’s handling of the first federal trial to examine if the U.S. Constitution prevents states from limiting marriage to a man and a woman.

The appealing attorneys, who called two witnesses compared to 18 for the plaintiffs, asked the 9th Circuit to ignore the trial testimony on which Walker laboriously based his opinion, calling it “unreliable and ultimately irrelevant” to whether Proposition 8 passes constitutional muster.

“Having blinded itself to the genuine animating purpose of marriage, the district court was obliged to offer a different rationale for the institution, presumably one that is entirely indifferent to the gender of the spouses,” they wrote.

They also characterized as defamatory the judge’s conclusion that “moral disapproval” of gay men and lesbians was the main reason voters passed Proposition 8 in November 2008.

“The district court decision is an attack on the many judges and lawmakers and millions of Americans who rightly and reasonably understand that marriage is the unique union of a man and a woman,” said Alliance Defense Fund attorney Brian Raum, who is part of the legal team fighting to uphold Proposition 8. “The Hollywood-funded opposition wants to impose — through a San Francisco court — an agenda that America has repeatedly rejected.”

American Foundation for Equal Rights President Chad Griffin, whose organization organized and funded the lawsuit that led to Walker’s ruling, said he remains confident that it would be upheld in the 9th Circuit and ultimately, the U.S. Supreme Court.

“The fact remains that Proposition 8 is unconstitutional, as was proven conclusively and unequivocally through a full federal trial,” Griffin said. “There is no getting around the fact that the court’s decision was based on our nation’s most fundamental principles, and that the Constitution does not permit unequal treatment under the law.”

The 1972 case the Proposition 8 lawyers cited in their brief involved a gay couple who sought the right to marry in Minnesota and were rebuffed by that state’s highest court and ultimately, the U.S. Supreme Court, which refused to hear their appeal.

Before declaring Proposition 8 unconstitutional last month, Walker rejected arguments that he was bound by the 38-year-old case, determining that the high court’s rulings in subsequent gay rights cases were more relevant to his deliberations.

They also cited as evidence that Walker had exceeded the bounds of his authority in a 1982 decision in which the 9th Circuit ruled that a gay U.S. citizen who had obtained a marriage license in Colorado was not eligible to sponsor his foreign-born same-sex partner for immigration purposes.

The pro-Proposition 8 legal team devoted part of their filing to trying to persuade the 9th Circuit that they should be allowed to defend the ballot measure since California Gov. Arnold Schwarzenegger and Attorney General Jerry Brown have refused to appeal the lower court ruling.

Doubts have been raised about whether the coalition of religious and conservative groups that qualified Proposition 8 for the ballot and campaigned for its passage have authority to do so because its members are not responsible for enforcing marriage laws.

Under federal court rules, appealing parties have to demonstrate they have suffered a direct, concrete and individualized harm. The same-sex marriage ban’s sponsors meet those requirements, their lawyers argued Friday, because the California Supreme Court allowed them to defend Proposition 8 in an ultimately unsuccessful effort to get the measure overturned last year and Walker allowed them to defend it again in his court.

Lawyers for a Southern California county whose residents voted overwhelming for Proposition 8 also were due to submit briefs before midnight arguing why they also should be allowed to appeal. The Imperial County Board of Supervisors and the county clerk have maintained they have the legal right to challenge Walker’s ruling even if the ban’s sponsors don’t because counties issue marriage licenses.

If the 9th Circuit dismisses the appeal after deciding that neither the county nor the measure’s proponents have legal standing, Walker’s ruling would become final unless the U.S. Supreme Court agrees to take up the case.

If the high court refuses to intervene, gay couples would be able to marry in California again. An estimated 18,000 couples were married in California before Proposition passed.

—  John Wright

Texas AG Greg Abbott: Judge in Prop 8 case ‘failed to do what a judge is supposed to do’

A few weeks back we wrote about how anti-gay leaders in Texas were deafeningly silent about U.S. District Judge Vaughn Walker’s landmark decision declaring Proposition 8 unconstitutional. As we said at the time, this case has the potential to void gay marriage bans in all states including Texas that have passed them, so one might expect the folks who pushed through the 2005 state constitutional amendment to chime in. Our post was later picked up by Rachel Maddow. Anyhow, looks like Texas Attorney General Greg Abbott, who’s been fighting gay divorce tooth and nail, has finally said something about Walker’s ruling, in an interview last week with the Texas Tribune (which has seemingly become the only mainstream media outlet in the state that even pretends to care about LGBT issues). Below is a transcript of the full exchange between Abbott and the Tribune’s Evan Smith, taken directly from the first three minutes of the video. Smith asks legitimate questions but fails to follow them up and seems to let Abbott off the hook pretty darn easily. For example, Smith allows Abbott’s assertion that Baker v. Nelson is binding precedent — which is pretty far-fetched at this point — to go unchallenged. Likewise, Abbott fails to respond substantively about Ken Mehlman’s coming out or the issue of transgender marriage. Again, kudos to the Tribune for bringing up these topics, but ultimately that’s not enough — they need to do their homework and be prepared to hold people’s feet to the fire.

Smith: I want to start with a bit of news that broke yesterday afternoon, and that is about Ken Mehlman. Ken Mehlman is the former chair of the Republican National Committee. He was George W. Bush’s campaign manager in ’04, a close aide to George W. Bush over the years politically, who I think as you know announced yesterday that he’s gay, and that he intended to use that public position to campaign for gay marriage? What do you think about that?
Abbott: What do I think about Ken Mehlman?

Smith: What do you think about the Mehlman announcement and what do you think the larger significance of the Mehlman announcement is if there is any for the discourse about gay marriage in this county?
Abbott: Well it adds further discourse into the whole issue, but it doesn’t change the legal dynamics. What one person feels doesn’t change the law, doesn’t change the constitution, doesn’t change pre-existing Supreme Court precedent on the issue.

Smith: So there’s a legal issue that you addressed. Mehlman’s announcement doesn’t change that. But there’s also a political dynamic, surely you would agree, at work here?
Abbott: Well, there is a political dynamic. There’s a political dynamic that’s been in play for decades. But once again, the political dynamic is not going to rewrite the constitution. The constitution says what it says, and just because one person comes out and says, “Listen, I’m gay, I believe in same-sex marriage, doesn’t change the constitution.

Smith: And nor does necessarily the actions of a judge in California, as one did recently, holding the door open to the overturning of the proposition in California That as well is one judge’s decision and does not overall affect the issue?
Abbott: It doesn’t impact the issue. If you want to delve into the details, the reality is that that judge failed to do what a judge is supposed to do. Lower court judges are supposed to follow higher-court precedents. There is a precedent from the United States Supreme Court on this issue, in Baker v. Nelson, that is binding precedent on the lower courts unless and until the Supreme Court changes that opinion, and that binding opinion is one that doesn’t recognize same-sex marriages.

Smith: You had the opportunity recently in a case here in Texas involving a transgender individual to offer an attorney general’s opinion. This is a case where people say it may be kind of a small crack in the door, where gay marriage is actually in certain instances legal in Texas. Your office was asked to offer an opinion, and you declined to. Can you talk about that?
Abbott: First of all, we had three opportunities to weigh in legally in courts about whether or not gay marriage is legal in the state of Texas. The issue you’re talking about is the transgender issue, and that involved an issue where we got an opinion request from the county attorney in El Paso, and we rejected opining on that opinion because of current pending litigation. Now if I tell the county attorney from El Paso that I will not give them an opinion, Evan, I’m not going to give you an opinion either.

—  John Wright