Florida Agenda

This week, the U.S. Supreme Court considers two different yet equally powerful cases in which the justices will attempt to define for this generation just what it means to be married.

On Tuesday, March 26, the high court heard arguments in Hollingsworth v. Perry, the case concerning the constitutionality of Proposition 8, California’s ban on same-sex marriage.  On Wednesday, March 27, the justice heard arguments in United States v. Windsor, the challenges of the constitutionality of a section of the 1996 federal Defense of Marriage Act (DOMA).

While both cases are landmark in their importance to the future of gay rights, the Prop. 8 case, Hollingsworth, could result in both changes to the law and the status of LGBT Americans, a Brown v. the Board of Education for LGBT rights.

In the case of Hollingsworth, the Supremes have an opportunity to decide on the question of whether same-sex couples have a constitutionally-protected right to marry.

The DOMA case, Windsor, is far more limited in its scope. It doesn’t ask who has the right to marry, but rather whether legally-married same-sex couples should have access to the same federal benefits as married heterosexual couples.

In 2008, after the California Supreme Court granted gay couples the right to marry, voters passed Prop. 8, prohibiting same-sex marriage. That meant that voters took away a right that a court had already established exists. Subsequent federal courts have ruled Prop. 8 to be unconstitutional.

The brief challenging Proposition 8 argues that the voter-approved law is unconstitutional “because it denies gay men and lesbians their fundamental right to marry without furthering a legitimate—let alone a compelling—state interest.”

Time and again, the Supreme Court has ruled that marriage is a fundamental right, and the court has never limited that right to those who choose to procreate. The brief says that the California law was lack “enacted solely for the purpose of making gay men and lesbians unequal to everyone else,” a violation of the Constitution.

Additionally, the Obama Administration filed its own brief arguing in support of protecting same-sex marriage in California and the eight other states that recognize civil unions and domestic partnerships.

Defenders of Proposition 8 argue that the Equal Protection Clause of the Constitution’s 14th Amendment does not require California to redefine marriage to include gay couples.

How will the justice rule? On the fuzzy end of the lollipop, they might decide that the supporters of Prop. 8 do not have legal standing to challenge the California law (disliking gays not being considered enough of a “compelling interest”), and send the case back to the lower courts.

They might also conclude that their decision only applies to California, rendering the decision less sweeping than LGBT rights supporters might wish.

But if the Supremes decide that it’s time to “take out the trash,” they could rule that—nationwide— marriage is a protected right for same-sex couples. It’s a long way to June, when the ruling is likely to be handed down.

By Cliff Dunn

SAN?FRANCISCO, CA – On Tuesday, a federal appeals panel of the 9th U.S. Circuit in San Francisco ruled that California’s law that bans same-sex marriage is unconstitutional. The decision is likely to be appealed to the full U.S. Court of Appeals for the 9th Circuit by opponents of marriage equality, or make its way to the U.S. Supreme Court.

Proposition 8 was approved in 2008 by 52 percent of California voters. It amended the state’s Constitution to limit marriage to a man and a woman. A majority of states have similar constitutional amendments that ban same-sex marriage. Six states– Connecticut, Iowa, Massachusetts, Vermont, New Hampshire, and New York—as well as the District of Columbia permit marriage equality.

In the decision, U.S. Circuit Judge Stephen Reinhardt wrote, “Proposition 8 serves no purpose, and has no effect, other than to lessen the status and human dignity of gays and lesbians in California, and to officially reclassify their relationships and families as inferior to those of opposite-sex couples,” adding that “the Constitution simply does not allow for laws of this sort.”

The 2-to-1 panel vote that overturned Prop 8 included Reinhardt, an appointee of President Jimmy Carter and considered one of the nation’s most liberal appellate judges, and Judge Michael Daly Hawkins, who was appointed to the court by President Bill Clinton. The dissenter, Judge N. Randy Smith, is a conservative appointed by President George W. Bush.

The panel did not address whether the Constitution protects the rights of same-sex couples to marry. Instead, it took a narrow position, focusing on the fact that gay couples had possessed the right to marry in the Golden State, for however brief a time, until that right was nullified by Proposition 8. During the five-months between the state Supreme Court’s ruling that such a right existed and the passage of Prop 8, approximately 18,000 same-sex couples were wed in California.

“By using their initiative power to target a minority group and withdraw a right that it possessed, without a legitimate reason for doing so, the people of California violated the [U.S. Constitution’s] Equal Protection Clause,” Reinhardt wrote in the decision. “We hold Proposition 8 to be unconstitutional on this ground.”

The decision of the panel was based upon the U.S. Supreme Court’s 1996 ruling in Romer v. Evans. That decision invalidated a Colorado constitutional amendment that prohibited the state or any other governmental body from enacting measures that protect homosexuals from discrimination.

The case was brought by two same-sex couples, Kris Perry and Sandy Stier, and Paul Katami and Jeff Zarrillo. Theodore Olson, the former U.S. Solicitor General under George W. Bush who represented the couples, said that “today, we are more American because of this decision.”

“This case is about equality and freedom and dignity and fairness and decency,” said Olson. “It’s about whether we’re going to eliminate government discrimination.”

Olson and his co-counsel, David Boies, had previously stood on opposing sides of another historic case, 2000’s Bush v. Gore.

From a practical position, full recognition of marriage equality is not likely in California until the appeals process is completed. Supporters of Proposition 8 could ask the full U.S. Court of Appeals for the 9th Circuit to review the panel’s ruling, or they may take it directly to the U.S. Supreme Court.

The appeals panel’s 2-to-1 decision upheld the 2010 ruling by former U.S. District Judge R. Vaughn Walker. The panel rejected a motion made by Prop 8 backers that Walker, who was appointed in 1989 by President George H.W. Bush and retired last year, should have recused himself because he disclosed after the trial that he is gay.

In his lone dissenting opinion, Judge Smith said the Supreme Court’s Romer ruling should not have decided the outcome of the Proposition 8 case, and that the judiciary’s proper role is to defer to the
view that the law advanced “legitimate state interests.”

By Cliff Dunn

By nearly any yardstick, 2011 was a tumultuous year for LGBT rights. In Florida, the courts upheld the constitutionality of gay adoptions. Nationally, on Sept.

20, the White House announced the final dismantling of the Pentagon’s 20 year-old Don’t Ask, Don’t Tell (DADT) policy, to the applause and dismay of Americans of virtually all political stripes. The point was driven home in November with the “kiss seen ‘round the world” between U.S. Navy Petty Officer 2nd Class Marissa Gaeta and Petty Officer 3rd Class Citalic Snell.

Also last year, as Proposition 8 opponents and supporters in California take their collective legal and election battles to the next ballot referendum, New York lawmakers, Republicans as well as Democrats, approved marriage equality in the Empire State on June 24.

On the international front, Secretary of State Hillary Rodham Clinton illustrated in clear language that the Obama administration has drastically changed its foreign policy relating to gay rights in a historic speech in Geneva, Switzerland on Dec. 6. Recognizing that homosexuality is still criminal in 76 countries, Clinton urged the world’s leaders to grant LGBT people “the full measure of liberty, the full experience of dignity, and the full benefits of humanity.”

Echoing Obama’s shift and Clinton’s injunctions, the UN Human Rights Council for the first time in history passed  a resolution supporting global LGBT rights, expressing “grave concern at acts of violence and discrimination, in all regions of the world, committed against individuals because of their sexual orientation and gender identity.”

Elsewhere internationally, British Prime Minister David Cameron announced his commitment to a course of “how, not if” in implementing full civil marriage rights for LGBT couples, and to have the legislation in place within the lifetime of the current parliament. In Australia, the governing Labor Party also announced its support for full marriage equality.

SAN FRANCISCO, CA: Judge Vaughn Walker, the U.S. District Judge who ruled in August that Prop 8, California’s voterapproved ban on same-sex marriage is unconstitutional, has announced he will retire from his post on the San Francisco federal court in February of 2011.

Rich Wieking, clerk of the court, stated in an e-mail that Walker will step down from the bench on December 31st and retire in February.

California Gay Couples Continue to Wait

By JAMES MICHAELS

On Monday, August 16, 2010, the 9th U.S. Circuit Court of Appeals put an emergency stay to prevent the issuing same-sex marriage licenses in the state of California which was scheduled to begin on Wednesday, August 18.

On August 4, U.S. District Court Judge Vaughn Walker overturned the marriage ban known as Proposition 8. Vaughn ruled that Prop.

8 was unconstitutional stating that banning same-sex marriage in California violated the Constitutions’ equal protection and due process rights. However, his ruling put a stay on his order to allow time for proponents of Prop. 8 to pursue an appeal.

The three-judge appellate court panel said it wanted to consider the constitutionality of the state’s same sex ban. Sponsors of Prop. 8 petitioned the court to block gay marriages to resume until a determination from the appellate court could be made. They claimed that allowing same-sex marriages to resume while the case was being appealed could cause legal chaos if Prop. 8 was eventually upheld.

Lawyers favoring dropping Prop. 8 stated that they are encouraged that eventually the ban on gay marriage in the state would be permanently dropped and that they would not appeal the appellate court’s stay decision to the U.S. Supreme Court. However, they added they are will to take the constitutionality of Prop. 8 to the Supreme Court if necessary.

Oral arguments both for and against dropping Proposition 8 are scheduled to begin on December 6.

In a 136-page rul ing, Judge Vaughn Walker has declared Proposition 8, the measure bann

ing same-sex marriage in California, unconstitutional under both the due-process and equal-protection clauses.

Says the ruling:

“Because Proposition 8 is unconstitutional under both the Due Process and Equal Protection Clauses, the court orders entry of judgment permanently enjoining its enforcement; prohibiting the official defendants from applying or enforcing Proposition 8 and directing the official defendants that all persons under their control or supervision shall not apply or enforce Proposition 8.”

Judge Expected to Make Decision Later This Summer

BY DMITRY RASHNITSOV

The lawsuit against California’s Proposition 8, which amended the state constitution in 2008 to re-ban same-sex marriage, finished up in United States District Court in San Francisco last week after more than nine months in the courts.

The lawyer for the group suing the state argued that Prop 8 violates the U.S. Constitution’s equal-protection clause by creating separate classes of people with different laws for each.

“The fundamental constitutional right to marry has been taken away from the plaintiffs and tens of thousands of similarly situated Californians,” said Attorney Ted Olson. “Their state has rewritten its constitution in order to place them into a special disfavored category where their most intimate personal relationships are not

valid, not recognized and second-rate. Their state has stigmatized them as unworthy of marriage, different and less respected. … There is not a compelling governmental interest to put the plaintiffs in a class like this and take away what the Supreme Court has called a fundamental right, a right of liberty, privacy, association, intimacy and autonomy.”

Olson went on to argue that the law was incredibly discriminatory.

“The evidence is overwhelming that it imposes great social harm on individuals who are our equals,” Olson said. They are members of our society. They pay their taxes. They want to form a household. They want to raise their children in happiness and in the same way that their neighbors do.”

Pro-Prop 8 lawyer Charles Cooper, in his closing argument, said that “the central purpose of marriage in virtually all societies and at all times has been to channel potentially procreative sexual relationships into enduring stable unions to increase the likelihood that any offspring will be raised by the man and woman who brought them into the world.”

“The right to marry is bound up with and proceeds from the fundamental nature and its fundamental purpose relating to procreation and the existence and survival of the human race,” he said. “So it is itself, by definition, the right of a man to marry a woman, and vice versa.

That is — that is the right.”

Cooper also argued that sexual orientation is not fixed, referring to “its amorphous, effectively indefinable, at least consistently, nature, and the simple fact that it is not immutable (or) an accident of birth.”

“Sexual orientation does change,” he said. “It does change over time. And it apparently changes especially in women.”

No cameras were allowed in the courtroom during the trial because the anti-gay lawyers feared that witnesses would not be able to speak their mind freely if they knew that the proceedings would be shown on television.

Experts expect the judge to issue his ruling sometime by the end of this summer. Whichever side loses will most likely appeal the decision to the next highest court, and at some point this case may end up in the Supreme Court.

When Cooper wrapped up his closing argument, Olson spoke again.

“Mr. Cooper talks about procreation as the fundamental basis for marriage,” Olson said. “Well, don’t you have to prove that Proposition 8 does something to protect procreation? (The U.S. Supreme Court has said that) ‘under the lowest standard of review, you have to prove that you have a legitimate interest and that the object’ — Proposition 8 in this case — ‘advances that legitimate interest.’”

“So how does preventing same-sex couples from getting married advance the interest or protect the interest of procreation?” he asked. “They are not a threat to us. What one single bit of evidence (is there) that they are a threat to the channeling (of procreation into marriage) function? If you accept that California has the right to do that in the first place. And I do not. This is an individual constitutional right. And every Supreme Court decision says that it’s a right of persons. Not the right of California to channel those of us who live in California into certain activities or in a certain way.”

Olson concluded: “(Overturning) Proposition 8 isn’t changing the institution of marriage. It is correcting a restriction based upon sex and sexual orientation.”