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

Former colleagues testify for lesbian flight nurse discharged from Air Force under DADT

GENE JOHNSON | Associated Press

TACOMA, Washington — A lesbian flight nurse discharged from the Air Force under the government’s “don’t ask, don’t tell” policy for gays in the military was an excellent officer whose sexuality never caused a problem in her unit, former colleagues told a federal judge Monday, Sept. 13.

Former Maj. Margaret Witt is seeking reinstatement to the Air Force Reserve in a closely watched case that “don’t ask, don’t tell” critics hope will lead to a second major legal victory this month. The trial began just days after a federal judge in California declared the policy unconstitutional.

Witt was suspended in 2004 and honorably discharged after the Air Force received a complaint from a civilian about her sexuality.

The first witness in her case, retired Master Sgt. James Schaffer, testified that Witt was exceedingly competent and said her dismissal was so unfair, it was part of the reason he retired in 2007.

“It was a rather dishonorable act on the part of the Air Force,” Schaffer said. “It should not be about what you are, but who you are.”

Witt’s case has already led to one crucial ruling — a 2008 holding by a 9th U.S. Circuit Court of Appeals panel that the military cannot discharge people under “don’t ask, don’t tell” unless it shows that the firing is necessary to further military goals such as unit cohesion. The case has returned to federal court in Tacoma for U.S. District Judge Ronald B. Leighton to determine whether Witt’s dismissal met that standard.

The 1993 law prohibits the military from asking about the sexual orientation of service members, but allows the discharge of those who acknowledge being gay or are discovered to be engaging in homosexual activity. Last week, U.S. District Judge Virginia Phillips in Los Angeles determined the policy was an unconstitutional violation of the due process and free speech rights of gays and lesbians.

While Phillips’ ruling has no effect on the legal issues in Witt’s case, gay rights activists believe a victory — and Witt’s reinstatement — could help build momentum for repealing the policy. The Senate could soon take up a House-approved defense bill that includes a repeal.

Witt sat in the courtroom Monday amid her supporters, including Lt. Col. Victor Fehrenbach, a fighter pilot from Idaho who is fighting his own discharge by the U.S. Air Force.

Peter Phipps, a Justice Department lawyer representing the Air Force, insisted during his opening statement that Witt’s conduct necessitated her firing. That included a long-term relationship with a civilian woman, an affair with a married woman and two earlier relationships with fellow servicewomen, Witt acknowledged in a May deposition.

A 2004 e-mail from the married woman’s husband to the Air Force chief of staff, Gen. John Jumper, prompted the investigation into Witt’s sexuality. Witt remains in a relationship with that woman, whose husband divorced her.

“By committing adultery, she compromised her integrity and her ability to lead,” Phipps said. “Plaintiff set an example of a disregard for Air Force policies.”

Witt’s discharge therefore eliminated a risk to unit cohesion and morale, he added. He said the support she has received from colleagues is irrelevant; the law’s constitutionality doesn’t depend on the views of her friends.

Furthermore, the military cannot handle discipline by referendum, because that would lead to uneven application of the law, Phipps said.

Witt acknowledged in her deposition the extramarital affair was not consistent with good “officership.” She also said she told two members of her unit about her orientation — forcing them to choose between loyalty to Witt and Air Force policy, the Air Force argues.

Former colleagues who testified Monday disagreed that Witt’s firing accomplished anything — especially because it came during a shortage of flight nurses.

“We were at war at the time,” said Lt. Col. Vincent Oda. “It was the loss of an able flight nurse is what that was.”

The court also heard from other service members discharged under “don’t ask, don’t tell.” One, former Army Sgt. Darren Manzella, said that when his superiors first investigated him, he gave them pictures of himself and his boyfriend kissing to make it clear he didn’t want to hide anything.

The result of that initial inquiry? “No evidence” of homosexuality, Manzella said. He served almost two more years before the Army kicked him out in 2008.

One of Witt’s lawyers, Sarah Dunne of the American Civil Liberties Union of Washington state, said in her opening statement that the McChord Air Force Base aeromedical evacuation squadron with which Witt served welcomed gays and lesbians, and it was her dismissal — not her orientation — that caused problems in the unit.

Schaffer, the retired master sergeant, said he went on hundreds of flights with Witt, including several missions to evacuate ill or wounded Americans from the Middle East and Afghanistan. Witt received a standing ovation when she showed up at his retirement party in 2007, he said.

Dunne said Witt received glowing performance reviews that attested to her nursing ability and leadership, even one that was written in 2005, after her suspension.

Her suspension came less than a year before she would have earned her full pension.

—  John Wright

Lesbian seeks reinstatement to Air Force; DADT opponents hope for another big legal victory

GENE JOHNSON | Associated Press

SEATTLE — Opponents of the “don’t ask, don’t tell” policy against gays serving in the military were hoping for another major legal victory as a federal trial began Monday, Sept. 13 over whether to reinstate a lesbian flight nurse discharged from the Air Force Reserve.

The trial comes just days after a federal judge in California declared “don’t ask, don’t tell” an unconstitutional violation of the due process and free speech rights of gays and lesbians. While the ruling does not affect the legal issues in the case of former Maj. Margaret Witt, gay rights activists believe a victory — and her reinstatement — could help build momentum for repealing the policy.

“There’s already political momentum to do something to repeal this unfair statute,” said Aaron Caplan, a professor at Loyola Law School in Los Angeles who is on Witt’s legal team. “Judicial opinions from multiple jurisdictions saying there’s a constitutional problem with this ought to encourage Congress to act more swiftly.”

Witt was a member of a squadron based at McChord Air Force Base near Tacoma when she was suspended in 2004 and honorably discharged. She challenged the constitutionality of her dismissal, and a federal appeals court panel ruled in 2008 that the military could not discharge service members for being gay unless it proved that the firing furthered military readiness.

The case was sent back to U.S. District Court in Tacoma for Judge Robert Leighton to determine whether Witt’s firing met that standard. Several of Witt’s former colleagues are expected to testify that she was an excellent nurse, and it was her dismissal — not her sexual orientation — that caused morale problems in the unit.

Justice Department lawyers representing the Air Force note that the case has put them in the position of defending a law neither the president nor the department itself believes is good policy. Defense Secretary Robert Gates also favors repealing the 1993 law, which prohibits the military from asking about the sexual orientation of service members but allows the discharge of those who acknowledge being gay or are discovered to be engaging in homosexual activity.

Government lawyers nevertheless insist Witt’s firing was justified — and that the panel of the 9th U.S. Circuit Court of Appeals did not know the extent of her conduct when it sided with her in 2008. That conduct included a long-term relationship with a civilian woman, an affair with a woman who was married at the time and two earlier relationships with fellow servicewomen, Witt acknowledged in a deposition in May.

It was a 2004 e-mail from the husband of the married woman to the Air Force chief of staff, Gen. John Jumper, that prompted the investigation into Witt’s sexuality.

Witt acknowledged the extramarital affair was not consistent with good “officership.” She also said she told two members of her unit about her orientation — forcing them to choose between loyalty to Witt and Air Force policy, the Air Force argues.

For those reasons, it says, Witt’s firing did further military goals, even if 19 current and former members of Witt’s unit have submitted declarations saying they had no problem serving with her.

“Those co-workers are not military commanders, and the military cannot operate by a unit referendum process in which disciplinary policies and outcomes are determined by the individual opinions of a few unit members,” Justice Department attorney Peter J. Phipps wrote in a court filing.

The Air Force also says Witt can’t be reinstated because she no longer meets Air Force nursing requirements, something Witt’s attorneys dispute.

Witt’s attorneys, led by the American Civil Liberties Union of Washington, say that it is the Air Force’s burden to prove that her reinstatement would be a detriment to unit cohesion. And, ACLU attorney Sarah Dunne says, the Air Force has provided no such evidence.

Gen. Charles E. Stenner Jr., an expert witness for the government, said in a deposition that he didn’t know if Witt’s reinstatement would negatively affect military functions, and the current commander of Witt’s unit, Col. Janette Moore-Harbert, acknowledged having no evidence to that effect.

The trial is expected to last seven days. Meanwhile, the Senate could take up a defense bill passed by the House that includes a provision to end “don’t ask, don’t tell.”

—  John Wright